Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force)

[2020] NSWCA 160

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160

Hearing dates:

27 July 2020

Date of orders:

27 July 2020

Decision date:

28 July 2020

Before:

Bathurst CJ; Bell P; Macfarlan JA

Decision:

1.   Appeal dismissed.

2.   No order as to costs.

Catchwords:

APPEAL – whether appeal lies to Supreme Court from order prohibiting proposed public assembly notwithstanding s 27(2) of the Summary Offences Act1988 (NSW) – discussion of statutory limitation of appeals under the Summary Offences Act.

COURTS – Jurisdiction – Whether Supreme Court had jurisdiction to entertain an application to prohibit a proposed public assembly in circumstances where Commissioner of Police was alleged not to have complied with the procedure provided for by s 25(2) of the Summary Offences Act 1988 (NSW).

PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether Supreme Court had jurisdiction to entertain an application to prohibit a proposed public assembly – whether Supreme Court’s jurisdiction depended on Commissioner first complying with procedure specified in s 25(2) of the Summary Offences Act.

Legislation Cited:

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Public Assemblies Act 1979 (NSW) ss 6(2), 8

Summary Offences Act 1970 (NSW)

Summary Offences Act 1988 (NSW) ss 23, 24, 25, 26, 27, Pt 4

Supreme Court Act 1970 (NSW) ss 75, 101

Workers Compensation Act 1987 (NSW) s 151C(1)

Summary Offences Regulation 2015 (NSW) cl 13, Sch 1

Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW) cl 18

Cases Cited:

2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32

Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11

Commissioner of Police (NSW) v Supple [2020] NSWSC 727

Commissioner of Police v Bassi [2020] NSWSC 710

Commissioner of Police v Gray [2020] NSWSC 867

Commissioner of Police, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Knight v F.P. Special Assets Limited (1992) 174 CLR 178; [1992] HCA 28

McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34

Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46

Parisienne Basket Shoes Proprietary Limited v Whyte (1938) 59 CLR 369; [1938] HCA 7

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109

Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22

The Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305; [2000] FCA 439

The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54

Texts Cited:

M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press)

Category:

Principal judgment

Parties:

Padraic Gibson (on behalf of the Dungay family) (Applicant)
Commissioner of Police (NSW Police Force) (Respondent)

Representation:

Counsel:

D R J Toomey SC, F Graham, C D Longman (Applicant)
M G Sexton SC, J S Emmett (Respondent)

Solicitors:

Peter O’Brien, O’Brien Criminal and Civil Solicitors (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2020/00218695

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 953

Date of Decision:

26 July 2020

Before:

Ierace J

File Number(s):

2020/213575

HEADNOTE

[This headnote is not to be read as part of the judgment]

In a judgment delivered at midday on Sunday, 26 July 2020, the primary judge acceded to an application by the Commissioner of Police (NSW) (the Commissioner) for an order pursuant to s 25(1) of the Summary Offences Act 1988 (NSW) (the Act) prohibiting a proposed public assembly in the Sydney Central Business District on 28 July 2020 (the proposed assembly).

The proposed assembly was the subject of a notice of intention given by Mr Padraic Gibson (the Applicant) on 14 July 2020 pursuant to section 23 of the Act and cl 13 of the Summary Offences Regulation 2015 (NSW). The proposed assembly was for “about 500 people”, to be held on Tuesday, 28 July 2020 between 12 noon and 12.30pm at Sydney Town Hall Square, to be followed by a public procession along certain streets of the Sydney Central Business District, ending in a rally in Macquarie Street outside the State Parliament House. The stated purpose of the proposed assembly was “[t]o protest against Aboriginal deaths in custody and demand justice for David Dungay Jnr”.

Section 25(2) of the Act provides for a process of conferral and consideration by the Commissioner, providing that the Commissioner shall not make an application to prohibit a proposed public assembly, unless a particular procedure had been followed.

Section 27(2) of the Act provides that a decision of a Court on an application under ss 25(1) or 26 is “final and is not subject to appeal”.

In its Cross-Summons, the Applicant contended that the proper process under s 25(2) of the Act had not been followed, that there was no genuine consideration of the matters put by the Applicant as the organiser of the proposed assembly at the conference, or by the Commissioner’s delegate who made the decision to make the application, and that that decision-making process was tainted by apprehended bias. It was contended that proper and lawful compliance (namely, compliance with an absence of prejudgment or bias) with s 25(2) was a precondition to any exercise of jurisdiction by the Court to prohibit a proposed public assembly.

The primary judge prohibited the proposed assembly, holding that the “the balancing of the competing concerns of the right to free speech and to demonstrate, as against the safety of the community at large, at this particular phase of the pandemic, necessitates the granting of the order prohibiting the holding of the public assembly”. The primary judge also dismissed the Cross-Summons. The primary judge held that there had been no failure to comply with the requirements of s 25(2) and that the decision-making process that had resulted in the application to the Court was not tainted by apprehended bias. Because of these findings, it was not necessary for the primary judge to consider the effect on the Court’s jurisdiction of any non-compliance.

The principal issue on appeal was whether any non-compliance by the Commissioner with the procedure under s 25(2) of the Act deprived the Court or was a precondition to the Court’s exercise of jurisdiction to prohibit the proposed assembly.

The Court held (Bathurst CJ, Bell P and Macfarlan JA), dismissing the appeal:

1. The Act establishes a regime for the authorisation or prohibition of public assemblies, recognising the interests of public safety and freedom of speech – values which may, but do not always, compete. The Act endeavours to secure an accommodation of these values through a process of consultation and negotiation, with the Supreme Court, in effect, established as the ultimate arbiter of any dispute which is not able to be resolved consensually: [7].

2. Section 27(2) of the Act which provides that there is no appeal from a decision on an application under ss 25(1) or 26 of the Act did not stand in the way of the appeal in the present case, which was confined to a question of the Court’s jurisdiction to order prohibition under s 25 of the Act: [37]-[41].

3. The Court’s jurisdiction did not depend upon compliance or lawful compliance (in the sense of compliance without bias) by the Commissioner with the procedure prescribed by s 25(2) of the Act. Any non-compliance could be taken into account by the Court as a discretionary matter in relation to the application for prohibition, the timing of any hearing of such an application, and/or costs: [53]-[65].

4. It followed that the Court had jurisdiction to prohibit the proposed public assembly and it was not necessary to decide whether or not there had in fact been compliance or lawful compliance by the Commissioner with s 25(2) of the Act: [66].

Judgment

THE COURT:

Introduction

1. In a judgment delivered at midday on Sunday, 26 July 2020, after an urgent hearing in the duty list spanning 23 and 24 July 2020, Ierace J (the primary judge) acceded to an application by the Commissioner of Police (NSW) (the Commissioner) for an order pursuant to s 25(1) of the Summary Offences Act 1988 (NSW) (the Act) prohibiting a proposed public assembly in the Sydney Central Business District on 28 July 2020 (the proposed assembly).

2. The primary judge also dismissed a Cross-Summons that had been brought by Mr Padraic Gibson (the Applicant) seeking a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW) that the Supreme Court of New South Wales lacked jurisdiction to hear the Commissioner’s application for a prohibition order under s 25 of the Act.

3. The proposed assembly was the subject of a notice of intention given by the Applicant on 14 July 2020 pursuant to section 23 of the Act and cl 13 of the Summary Offences Regulation 2015 (NSW) (the Regulation). The proposed assembly was for “about 500 people”, to be held on Tuesday, 28 July 2020 between 12 noon and 12.30pm at Sydney Town Hall Square, to be followed by a public procession along certain streets of the Sydney Central Business District, ending in a rally in Macquarie Street outside the State Parliament House. The stated purpose of the proposed assembly was “[t]o protest against Aboriginal deaths in custody and demand justice for David Dungay Jnr”.

4. This case represents the fifth occasion in the two last months on which application has been made to this Court either to authorise or to prohibit a public assembly pursuant to the Act: see Raul Bassiv Commissioner of Police (NSW) [2020] NSWCA 109 (Bassi); Commissioner of Police v Bassi [2020] NSWSC 710; Commissioner of Police (NSW) v Supple [2020] NSWSC 727; Commissioner of Police, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804; and Commissioner of Police v Gray [2020] NSWSC 867 (Gray).

5. These cases have been heard at a time when, on the one hand, the state and the nation are endeavouring to cope with the profound public health challenges (and economic consequences) of the COVID-19 pandemic whilst, on the other hand, there is a strong and legitimate desire to demonstrate peacefully against the scourge of Aboriginal deaths in custody.

6. The essence of the primary judge’s decision was articulated in [84] of his reasons, as follows:

“…the balancing of the competing concerns of the right to free speech and to demonstrate, as against the safety of the community at large, at this particular phase of the pandemic, necessitates the granting of the order prohibiting the holding of the public assembly. In so finding, I take into account the defendant’s proposed safety measures, but also the absence of a mechanism to enforce them and the current rating of the risk of transmission of the COVID-19 virus at public assemblies as being ‘medium’.”

The Summary Offences Act

7. The Act establishes a regime for the authorisation or prohibition of public assemblies, recognising the interests of public safety and freedom of speech, values which may, but do not always, compete. The Act endeavours to secure an accommodation of these values through a process of consultation and negotiation, with the Supreme Court, in effect, established as the ultimate arbiter of any dispute which is not able to be resolved consensually.

8. The key statutory provisions of the Act are as follows:

“24   Participation in authorised public assembly

If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of any thing 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.

25   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.

26   Authorisation by a Court of a public assembly

If:

(a) a notice referred to in section 23 (1) is served on the Commissioner less than 7 days before the date specified in the notice as the date on which it is proposed to hold the public assembly referred to in the notice, and

(b)   the Commissioner has not notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly,

the organiser may apply to a Court for an order authorising the holding of the public assembly.”

9. The Regulation is also relevant, with cl 13 providing:

“Notice of intention to hold a public assembly

(1) For the purposes of section 23 (1) (b) and (c) (v) of the Act, the form set out in Schedule 1 is the prescribed form of notice to be served on the Commissioner of Police and the particulars that it contains are the particulars prescribed.

(2) For the purposes of section 23 (2) of the Act, the following address is prescribed as the address of the office of the Commissioner of Police:

Police Headquarters

1 Charles Street

Parramatta NSW 2150”.

10. Schedule 1 to the Regulation prescribes a form to be used by a person seeking to organise a public assembly. In the present case, there is no issue that a Notice of Intention was properly given by the Applicant.

11. In Bassi at [17], this Court made the following observations about the statutory scheme established by the Act:

“(i)   the Summary Offences Act differentiates between public assemblies for which notice has been given to the Commissioner at least seven days prior to the holding of the public assembly, and public assemblies for which notice has only been given less than seven days prior to the proposed assembly;

(ii)   authorisation of the public assembly may be secured by notified non-opposition to the proposed public assembly by the Commissioner or, depending on the timing of the notice of intention, the absence of an order prohibiting the public assembly (in the case of notice which has been given more than seven days in advance) or an order authorising the public assembly (in the case of notification less than seven days prior) by the Supreme Court or the District Court of New South Wales;

(iii)   the Summary Offences Act expressly contemplates, in s 24, that the particulars of a statutory notice of intention to hold a public assembly may be amended by agreement between the Commissioner and the organiser of the proposed public assembly;

(iv)   this reflects the scope for negotiation and co-operation between the Police and the organiser as to the details and proposed manner in which the public assembly is to be conducted;

(v)   the Court only assumes a role in relation to public assemblies in circumstances where:

(a)   in the case of a notice of intention provided more than seven days prior to the proposed assembly, the Commissioner has not notified non-opposition; or

(b)   where the notice of intention was served less than seven days prior to the proposed assembly;

(vi) in the former case, the Commissioner in effect assumes the onus under s 25 of the Summary Offences Act of securing an order prohibiting the assembly whereas, in the latter case, the onus is placed on the organiser to secure court authorisation for the assembly;

(vii) before the Commissioner may apply for an order prohibiting the proposed public assembly, he or she must first engage in the co-operative process prescribed by s 25(2) of the Summary Offences Act with a view to securing, or at least exploring the possibility of securing a consensus in relation to the proposed public assembly;

(viii)   whilst the Summary Offences Act does not make any express provision for a change of position by the Commissioner where, for example the Commissioner, for any reason, wishes to withdraw a prior notified stance of non-opposition, s 25 of the Summary Offences Act provides the route that must be taken by the Commissioner in that event.”

12. At [15] of his reasons for judgment, the primary judge referred to a submission by the Applicant that both the Commissioner and the Attorney General (who intervened in the hearing at first instance) had conceded in written submissions that authorisation of a “public assembly” under the Act confers immunity on participants from penalties for a breach of cl 18 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW), which commenced on 1 July 2020 (the Public Health Order). Clause 18 of the Public Health Order directs that a person must not participate in an outside public gathering of more than 20 people. His Honour referred in the context of this apparent concession to the consideration of this question in Gray at [51]-[57].

13. Although no issue arose in the present case as to the extent to which s 24 of the Act affords a protection against a charge of breaching cl 18 of the Public Health Order, it is by no means obvious to us that that section of the Act confers an immunity for breach of cl 18, especially in circumstances where the Public Health Order provides in cl 18(3) a list of exceptions of which an “authorised public assembly” within the meaning of the Act is not one.

14. A key section of the Act for present purposes is s 27, which provides that:

“Applications under section 25 or 26

(1) The Court to which an application in respect of a public assembly is made under section 25 (1) or 26 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.

(2) The decision of a Court on an application under section 25 (1) or 26 is final and is not subject to appeal.

(3) Not more than one application may be made under section 25 (1) or 26 in respect of the same public assembly.”

15. Section 27 is in identical terms to its predecessor, s 8 of the Public Assemblies Act1979 (NSW), which was enacted consequent upon the repeal of the Summary Offences Act 1970 (NSW). The Explanatory Note that accompanied the introduction of the Public Assemblies Bill simply stated that cl 8 required the Court to decide the application as expeditiously as possible.

16. Section 27(2) of the Act did not stand in the way of the appeal that was brought in Bassi, because no decision was made at first instance in that case “on an application under section 25(1) or 26(1)” of the Act. As the Court in Bassi explained at [46]-[48]:

“The declaration that was sought orally on behalf of Mr Bassi as referred to at [32] above did not form part of any application pursuant to either ss 25 or 26 of the Summary Offences Act. This is a short answer to the argument based on s 27 of that Act. If, as we have held was the case, the Commissioner's non-opposition had been communicated to Mr Bassi on 4 June 2020, Mr Bassi did not need to make an application for authorisation pursuant to s 26 of the Summary Offences Act. Until and unless the Commissioner succeeded in an application under s 25, there was an authorised public assembly.

To the extent that the primary judge dismissed the Appellant's application for authorisation pursuant to s 26 of the Summary Offences Act, that was a contingent application and Mr Bassi did not in fact appeal from the dismissal of that application, conscious no doubt of the terms of s 27 of the Summary Offences Act.

Further, by reason of the view his Honour took as to the status of the Notice of Intention, the primary judge did not decide the Commissioner's application pursuant to s 25 of the Summary Offences Act, and in fact dismissed the Commissioner's Summons in his final orders. The Commissioner did not appeal from the dismissal of the Summons.”

17. That is to say, this Court’s earlier decision was not an appeal from an application under ss 25 or 26 of the Act. It was an appeal from the Court’s dismissal of an application for a declaration that the proposed public demonstration, having been notified more than 7 days in advance and the Commissioner’s non-opposition to it having been communicated to Mr Bassi, was authorised. Section 27 did not apply. The ordinary right of appeal under s 101 of the Supreme Court Act was accordingly available.

18. There is an obvious rationale for the lack of any right of appeal from a decision on an application under ss 25 and 26 of the Act. Applications under ss 25 and 26 are likely to be made within 7 days of the proposed public assembly. The Parliament has required the Court to determine the application “with the greatest expedition possible”, in order to prevent the litigation from stultifying the proposed public assembly. It is important that people who may consider participation in an assembly know and understand with certainty whether or not the assembly has been prohibited by an order of this Court, or authorised. That knowledge should not be clouded by the prospect of an appeal, carrying with it the possibility of a last minute reversal of the status of the assembly.

19. Consistently with that purpose, the Parliament has provided that there shall be a single hearing of any such application. There may not be further application at first instance (see s 27(3) of the Act), nor may there be an appeal. It may be seen that those provisions cut both ways. Either the organiser or the Police may be dissatisfied with the outcome of an application under ss 25 or 26. In both cases, the dissatisfied litigant has no right of appeal, nor any right to bring a further application.

20. There is nothing especially unusual about the absence of a right of appeal. There are many decisions from which no appeal lies. No appeal lies from many decisions of the District Court of New South Wales (including the very numerous decisions made each year allowing or dismissing an appeal from the conviction or sentence by the Local Court of New South Wales): see Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [8]. No appeal lies from a decision of the Supreme Court under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW): see The Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305; [2000] FCA 439 at [157]-[159].

21. Appeals are creatures of statute. In every case, a right of appeal exists only because the Parliament has said there is to be one. In the case of applications under ss 25 and 26 of the Act, Parliament has said there should not be any appeal.

22. To the extent that the primary judge heard and determined an application under s 25(1) in the present case, s 27(2) stands squarely in the way of a right of appeal from the decision on that application. As will be seen, this difficulty was recognised by the Applicant as reflected in the way in which the grounds of appeal in this Court were formulated.

The decision of the primary judge

23. In an admirable and detailed judgment produced with great speed, the primary judge exercised the discretion undoubtedly reposed in him to prohibit the proposed assembly. The outcome of the exercise of discretion is reflected in the primary judge’s conclusion which has been extracted at [6] above.

24. Before the primary judge reached that stage of the decision making process, however, his Honour dealt with two threshold issues of some complexity.

25. The first concerned a constitutional argument to the effect that the Act needed to be construed and read in light of the implied constitutional protection of freedom of political speech: see McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11. No ground of appeal is raised in respect of that argument or the manner with which it was dealt by the primary judge.

26. The second issue concerned the Applicant’s jurisdictional challenge as raised by the Cross-Summons. That issue was whether the Court’s jurisdiction to entertain the application for an order for prohibition was conditioned on compliance with the requirements of s 25(2) of the Act, the terms of which have been set out at [8] above. In short, the Applicant contended that the proper process had not been followed, that there was no genuine consideration of the matters put by the Applicant as the organiser of the proposed assembly at the conference, as required by s 25(2) of the Act, or by the Commissioner’s delegate who made the decision to make the application, and that that decision-making process was tainted by apprehended bias. It was contended that proper and lawful compliance (that is to say, compliance with an absence of prejudgment or bias) with s 25(2) was a precondition to any exercise of jurisdiction by the Court.

27. The primary judge dealt with the second threshold issue at [26]-[59] of his reasons for judgment, in essence finding that the decision to make the application was made by the Commissioner’s delegate, Acting Assistant Commissioner Maloney, that there had been no failure to comply with the requirements of s 25(2) and that the decision-making process that had resulted in the application to the Court was not tainted by apprehended bias. Because of these findings, it was not necessary for the primary judge to consider the effect on the Court’s jurisdiction of any non-compliance.

28. Given the urgency of the appeal and to understand the matters sought to be raised by the Applicant in this Court, it is convenient to set out the primary judge’s treatment of the jurisdictional issue in full:

“Fulfilment of the threshold requirement in s 25(2)(c) to bring an application to this Court

26.   The defendant was granted leave to file a cross-claim in court, seeking ‘[a] declaration pursuant to section 75 of the Supreme Court Act 1970 (NSW) that this Court does not have jurisdiction to hear an application for “prohibition” under section 25 of [the Act]’, and an order for costs.

27. The defendant submitted that the plaintiff failed to comply with s 25(2)(c) of the Act, and therefore the Court is unable to consider the application for a prohibition order.

28. Section 25(2) of the Act sets out certain steps that must be satisfied before an application for a prohibition order can be made. The defendant does not dispute that Acting Assistant Commissioner Maloney’s Notice of Invitation to Confer complied with the Act. It stated:

‘In accordance with s. 25(2)(a) of the Summary Offences Act 1998 (NSW), I hereby invite you to meet with Chief Inspector Paul Dunstan, as the police officer nominated by me, to confer with respect to the proposed public assembly, at the following time and place …’

29. The defendant informed Acting Assistant Commissioner Maloney that he wished to confer and the plaintiff then complied with s 25(2)(b), by agreeing on an amended mutually acceptable place, time and date for meeting, being The Rocks Police Station at 10:30am on Monday 20 July 2020.

30.   In an affidavit read at the hearing, Acting Assistant Commissioner Maloney stated:

‘11   At 9:20am on 20 July 2020 the defendant emailed written representations (submissions) in relation to the public assembly, all of which I have read. On 20 July 2020 at approximately 10:30am the defendant attended The Rocks Police Station to confer with Chief Inspector Paul Dunstan, the police officer nominated by me, in respect of the public assembly (the Conference). Also present at the Conference was Sgt Darren Struthers.

12   Following the Conference, I was provided with a briefing note dated 20 July 2020 prepared by Chief Inspector Dunstan in relation to the matters put by the defendant during the Conference in respect of the Public Assembly…

13   At the time of making this application I have read and taken into consideration [the Notice of Intention documents], the briefing note … including the eight documents listed on page 1 of the briefing note and any representations made by the defendant.’

31.   The defendant’s written representations were contained in an 11-page document. The Notice of Intention documents comprised the Notice of Intention itself, a covering email, a ‘COVID Safe Checklist’ setting out what steps are proposed to encourage social distancing, the wearing of masks and self-sanitising, and a request made to the NSW Minister for Health for an exemption pursuant to cl 24 of the Public Health Order. I note that the Minister for Health rejected the request on 23 July 2020. The briefing note included a copy of notes of the meeting taken by Sergeant Struthers. It concluded in these terms:

‘Submitted for consideration by the Commissioners delegate, Acting Assistant Commissioner Maloney, prior to deciding as to the authorisation of the proposed public assembly.’

32.   Earlier that morning, the New South Wales Police Commissioner was interviewed on Sydney Radio 2GB on the topic of the defendant’s application for authorisation of the protest. The interview was published as an audio link on the station’s website at 7:25am the same day, indicating it had occurred before that time. Part of the interview was as follows:

‘Interviewer: when I reported on this last week, no application had been made but there is now an application for this protest?

Commissioner: That’s correct, a [Notice of Intention] has been lodged and I’ve spoken to the Assistant Commissioner in charge, in the city, Mick Willing, and he has been instructed to take the matter to the Supreme Court, like we have with previous matters …’

33.   Later that day, the Commissioner was interviewed on Sky News. Referring to the protest, he said ‘we will take that matter to the Supreme Court’.

34. The defendant submitted that the terms of s 25(2)(c) of the Act oblige the Commissioner to actively consider ‘any matters put by the organiser at the conference and … any representations made by the organiser’ before a decision can be made on an application for a prohibition order. The Commissioner’s comments displayed a determination to make the application for a prohibition order regardless of what matters were put forward, or representations made, at the conference later that morning. Thus, he could not have ‘taken into consideration’ that material and his application cannot be considered by the Court.

35.   Acting Assistant Commissioner Maloney said that she received the defendant’s written representations, and Sergeant Struthers’ notes of the meeting, by email on Monday afternoon. The email was produced, indicating that it was sent to Acting Assistant Commissioner Maloney at 3:55pm. She gave instructions to the Office of General Counsel (“OGC”) by phone, in a call that commenced at 4:12pm, a time she was able to check on her phone while giving evidence.

36.   Acting Assistant Commissioner Maloney’s evidence was that she first became aware of the Commissioner had said on Radio 2GB before she gave instructions to the OGC, saying, ‘it was all over the news’. She said she did not receive any instructions from the Commissioner, or have any contact with him, on this issue, prior to giving instructions to the OGC. She spoke to Assistant Commissioner Willing once that day, which was in a phone call at 4:51pm the same afternoon, to inform him of her decision and to discuss other matters.

37. The defendant advanced three grounds as to why s 25(2)(c) of the Act had not been satisfied.

1.   Failure to give an opportunity to the defendant to be heard and to consider any matters and representations he puts forward, because decision to apply to Supreme Court was made before representations and conferral

38. The defendant submitted that it was apparent from the Commissioner’s comments in the Radio 2GB interview that he had decided to make the application to the Supreme Court, regardless of what occurred at the conference, and therefore the plaintiff had not complied with s 25(2)(c).

39.   The plaintiff submitted that since the Commissioner had delegated his functions under the Act to Acting Assistant Commissioner Maloney, whatever he said on that issue was irrelevant to the application. Provided Acting Assistant Commissioner Maloney had performed her functions correctly, there was no impediment to the plaintiff’s application being considered on its merits. The terms of paragraph 13 of her affidavit, quoted above at [30], was evidence she had done so.

40.   The instrument of delegation was tendered. Its terms were to the effect that the Commissioner delegated his functions under the Act to ‘all police officers of or above the rank of Assistant Commissioner’. Acting Assistant Commissioner Maloney explained in evidence that she was the delegated officer, because the protest is planned to take place in the Central Metropolitan Region, for which she is the Acting Assistant Commissioner, in place of Assistant Commissioner Willing, who is on leave.

41.   In Minister for Home Affairs v Omar [2019] FCAFC 188, the Full Court of the Federal Court was concerned with the meaning of a statutory duty to ‘consider’ (whether explicit or implicit), in the context of a duty of the Assistant Minister to consider certain representations made by a person whose visa was cancelled. The Full Court cited Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 451; [1995] FCAFC 1726 at 495 with approval, that to ‘consider’ is to ‘have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forwards and to appreciate who is making them’. To discharge the onus of proving that something was taken into consideration, the empowered decision-maker must engage in an ‘active intellectual process with reference to those representations’: at [36(d)]. What this actually requires may differ on a case-by-case basis, but in Omar, it was held that the Assistant Minister could not just acknowledge or simply note that representations had been made, but could include making specific findings of fact, such as considering whether or not a particular representation was accepted or rejected: see [39]-[40].

42.   Acting Assistant Commissioner Maloney was cross-examined as to whether she was influenced by what she understood the Commissioner had publicly said:

‘Q.   Officer, you were in an absolutely impossible situation, you being the delegate of the commissioner, the commissioner being the actual holder of the power to bring proceedings to the Supreme Court?

A.   No, I don't agree.

Q.   You were never going to make a decision that was different to the one your boss had already made?

A.   I don't agree.

Q.   And I suggest to you that if your evidence is that you were actually not influenced in any way by the statements made by the commissioner, by your knowledge that the commissioner had already decided to bring the case to the Supreme Court where the commissioner was the actual holder of the power to do that, you are not telling the truth?

…

A. No, I don't agree. I had made up my own mind. The Commissioner has his own view but my name is the one that has to sign off on the section 25 aspects of the prohibition order for the Court.

Q.   I suggest to you that your evidence that you effectively ignored anything about the commissioner's decision to take the case to the Supreme Court is not the truth?

A.   I don't agree.’

43.   I accept Acting Assistant Commissioner Maloney’s evidence to the effect that she, and not the Commissioner or Assistant Commissioner Willing, exercised the functions of the Commissioner in the application. I also accept her evidence that, prior to her instructions to the OGC to make the application to this Court, she had not been instructed to do so, in particular, by either the Commissioner or Acting Assistant Commissioner Willing, and that she considered the matters put forward by the defendant at the conference, and his written representations, in the manner required by the Act.

2. Failure to comply with s 25(2)(c), because the process was vitiated by apprehended bias

44.   The defendant submitted that, if the Court accepts Acting Assistant Commissioner Maloney’s evidence that she made the decision to bring the application pursuant to the Commissioner’s delegation, the decision itself was vitiated by apprehended bias.

45.   The consideration of whether a decision is tainted by apprehended bias involves judicial review of a decision on the basis of procedural fairness. The parties have assumed in their submissions on this issue that the decision is appropriate for judicial review, and I will proceed on that basis.

46. The consequence of a finding of apprehended bias is that the decision in question would fall into jurisdictional error, and the decision would be taken to be null and void. The declaratory relief sought by the defendant pursuant to s 75 of the Supreme Court Act 1970 (NSW) would be to that effect.

47.   The test for the apprehension of bias was stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 6, and is summarised by Gageler J in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [57]:

‘The test for the appearance of disqualifying bias in an administrative context has often been stated in terms drawn from the test for apprehended bias in a curial context.  The test, as so stated, is whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided.  Such statements of the test have nevertheless been accompanied by acknowledgement that the application of this requirement of procedural fairness “must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making”.’ (emphasis added)

48.   The majority (Kiefel, Bell, Keane and Nettle JJ) in Isbester had further comments on the application of the test to different circumstances:

‘20.   The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.

21.   The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application.  The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits.  Where it is said that a decision-maker has an ‘interest’ in litigation, the nature of that interest must be spelled out.  The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits.  As Hayne J observed in [Minister for Immigration and Multicultural Affairs v Jia (2005) 205 CLR 507; [2001] HCA 17], essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.

22.   It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers.  It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making.  The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm.  The content of the test for the decision in question may be different.

23.   How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker.  The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised.  The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.’

49.   The application of the principle will differ on a case-by-case basis, and depends on a range of factors, including the identity of the decision-maker, the particular subject matter the decision is concerned with and the particular circumstances. The statutory framework is a key part of the assessment from the outset: see Spigelman CJ in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [6].

50.   As to the nature of the decision-maker, the impartiality expected of judicial officers is more exacting, with a lower threshold for the finding of an appearance of bias, given the centrality of their independence and integrity. In the case of administrative decision-makers, and in particular government officials, the threshold will usually be higher. In Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17, the High Court considered certain political opinions expressed by the Minister, including statements as to how he would decide a particular migration case. The Minister subsequently cancelled the visa of that person. The High Court found that the Minister’s statements did not give rise to a reasonable apprehension of bias in respect of his decision. In reaching its decision, the majority (Gleeson CJ and Gummow J at 539-540, Hayne J agreeing; Callinan J at 583-584) held that the Minister’s conduct did not attract the same standards of detachment that would apply to a judicial officer. Rather, a minister is electorally and politically accountable; the role of a minister as an elected official includes being drawn into public debate and expressing opinions on issues that he may have the power to make decisions on.

51.   The defendant submitted that a bystander with knowledge of all the material and objective facts would take into account that the protest was shown to be opposed by police prior to any material being submitted for consideration, as a result of the Commissioner’s widely publicised statements. He would have ‘expected it to be followed, and expected the public to know that that was his decision’. The defendant contended that the effect of the statements was to create the impression that the Commissioner had already acted to uphold the views he expressed in the media. Acting Assistant Commissioner Maloney was aware of the comments made by the Commissioner and concerning Assistant Commissioner Willing, who is of a higher ranking to her, whilst making her decision. The public nature of the statements and the hierarchical structure of the organisation would have further undermined any legitimate decision-making, creating a perception of pressure on the actual decision-maker, being Acting Assistant Commissioner Maloney, to make the decision sought by the Commissioner. As a result, the reasonable observer would apprehend bias on the part of the decision-maker.

52. In response, the plaintiff submitted that the statutory context of s 25 is significant; the decision under s 25 ‘is not a decision which, of itself, impacts on the rights of the defendant to hold the public assembly’, but rather, is a mechanism to allow the Court to decide whether the public assembly is authorised. The plaintiff further submitted that, lower standards of detachment are expected from a public official such as the Commissioner, relying on Minister for Immigration and Multicultural Affairs v Jia. When this is taken into account, together with the fact that the Commissioner’s statements related to a conversation he had with Assistant Commissioner Willing and not the actual decision-maker, a fair-minded lay observer would not reasonably apprehend that the Commissioner’s delegate was biased in making the decision.

53.   Lastly, the plaintiff contended that the doctrine of necessity was relevant. It was submitted:

‘If it were the case that there was a reasonable apprehension of bias when Assistant Commissioner Maloney made the decision, given the hierarchical nature of the police force, that conclusion would apply to any other person who could make the decision to commence proceedings under s 25 of the Summary Offences Act. The necessity exception to the rule against bias would be engaged and would operate to displace the requirement of procedural fairness …’

54.   I accept the plaintiff’s submission that the statutory context of the decision in question impacts on the standard of impartiality expected of the decision-maker. The decision concerns whether to apply for a prohibition order in this Court. The decision-maker does not have power to directly determine anyone’s right to public assembly under the statute, and that decision is instead left in the hands of the Court, which is expected to make the decision impartially, with higher standards of detachment required of judicial officers.

55.   I also accept that the standards of detachment expected of the Commissioner of Police are lesser than those expected of a judicial officer. However, unlike the case of Minister for Immigration and Multicultural Affairs v Jia, which involved an elected government minister, the Commissioner is a public official who is not elected, not a member of a political party. Commissioner Fuller’s comments to Radio 2GB and Sky News on 20 July 2020 suggest that he was unaware of the process required by s 25(2)(c) of the Act, which is regrettable.

56.   Although a certain standard of impartiality is expected of the Commissioner, in my view, the fair-minded observer with knowledge of all material facts and circumstances would not reasonably apprehend bias in the present case. As I have found, the decision-maker was Acting Assistant Commissioner Maloney. The Commissioner did not make any statements in public to the effect that he had directly or indirectly instructed her to make the application, or influence her decision. There was no evidence that the Commissioner participated in the decision-making process that was engaged by Acting Assistant Commissioner Maloney, who was concerned with the feedback from the conference that morning, in the form of the notes of the meeting (by contrast with the case in Isbester, where a person with the appearance of bias was a constituting member of a panel that made a decision in respect of a person’s rights).

57.   Once the defendant had submitted materials for consideration, a police officer would be required to make a decision about whether or not to seek a prohibition order in Court. The defendant’s allegation of apprehended bias, due to the Commissioner’s statements in the media and the hierarchical nature of the organisation, and in spite of Acting Assistant Commissioner Maloney’s absence of communication with the Commissioner, would appear to suggest that anyone in the police force would be infected by apprehended bias. If this were the case, no officer would be able to consider the submitted materials and make any decision, thereby discharging their duties. I therefore accept that, in these circumstances, if apprehended bias did exist, then the doctrine of necessity would operate to allow Acting Assistant Commissioner Maloney to make the decision despite the existence of apprehended bias: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31.

3.   The short period of time (no more than 17 minutes) was insufficient for the delegate to discharge her obligation to ‘take into consideration’

58.   The period of time on Monday 20 July 2020 between the receipt by Acting Assistant Commissioner Maloney of the notes of that morning’s conference with the defendant and her call to the OGC was 17 minutes. The defendant submitted that it would not have been possible for Acting Assistant Commissioner Maloney to properly consider the relevant material in that time.

59.   The notes of the conference meeting had been transcribed and comprised two pages of typed material. Part of the defendant’s 11 pages of written further representations repeated submissions that had been made previously. It is not a document that would have been difficult to understand or consider. Most, if not all, of the other material had been previously provided to her. It is apparent from the evidence of Acting Assistant Commissioner Maloney that over the previous week, she had given consideration to the Notice of Intention documents; she was not considering the application by the defendant for the first time. I do not think it was impossible for Acting Assistant Commissioner Maloney to properly consider the material she received at 3:55pm in the space of 17 minutes.”

An urgent appeal

29. Shortly after 8.00pm on Sunday, 26 July 2020, the Applicant lodged a Summons seeking leave to appeal from the decision of the primary judge. The appeal was heard at 2.15pm on Monday, 27 July 2020.

30. The grounds of appeal contained in that application for leave to appeal all related to the Supreme Court’s jurisdiction to hear the Commissioner’s application, and whether or not that jurisdiction depended on compliance by the Commissioner with the requirements of s 25(2) of the Act.

31. The alleged non-compliance with s 25(2) of the Act was detailed in the following particulars in the Summons:

“a. lerace J erred at [29] in determining that the Plaintiff complied with s 25(2)(b) of the Act in circumstances where the Commissioner of Police made the decision to apply to the Supreme Court for a ‘prohibition’ order before the conference required by s 25(2)(b) of the Act took place.

b.   lerace J erred at [43] in (impliedly) determining that the decision to apply to the Supreme Court was not made before the conference held with the Appellant and before the representations made by the Appellant had been made.

c.   lerace J erred at [43] in determining that A/AC Maloney had taken into consideration any matters put forward by the Appellant at the conference, and his representations, as required by the Act.

d.   lerace J erred at [56] in finding that the Commissioner did not make any statements in public to the effect that he had indirectly instructed A/AC Maloney to make the application in circumstances where A/AC Maloney was acting in AC Willing's position and was otherwise in a junior position to both the Commissioner and AC Willing.

e.   lerace J erred at [56] in determining that the decision-making process was not tainted by an apprehension of bias.

f.   lerace J erred at [57] in determining that even if the decision-making process was tainted by an apprehension of bias that the doctrine of necessity would operate to allow A/AC Maloney to make the decision in circumstances where the putative necessity was brought about by the conduct of the repository of the power in making public declarations of his intention before having received and considered any representations of the Appellant, and in circumstances where the Commissioner had taken no steps to alleviate the apprehension of bias.

g.   lerace J erred at [57] in finding that the doctrine of necessity operated in the circumstances of this case to provide an answer to the Appellant's assertion of apprehended bias.

h.   lerace J erred at [58]-[59] in determining that A/AC Maloney received the material at 3.55pm in circumstances where the evidence was no higher than that the material was sent to A/AC Maloney at that time and there was no evidence from A/AC Maloney about what time she received the material or started reading it, only that the maximum possible window for consideration was 17 minutes.

i.   lerace J erred in failing to take into account on the question of apprehended bias that the maximum possible window available for consideration by A/AC Maloney of the matters raised by the Appellant in the conference and in his written representations was 17 minutes.”

32. The alleged non-compliance fell into a number of different categories.

33. Particulars (a) and (b) were predicated on the decision to bring the s 25(1) application to the Supreme Court having been made by Commissioner Fuller before any consultation process occurred, as contemplated and indeed required by s 25(2) of the Act. (There is, of course, a distinction between a decision to make an application and the making of an application. Section 25(1) of the Act is concerned with the latter, not the former.)

34. The remaining particulars were predicated on the decision to bring the s 25(1) application having been made not by Commissioner Fuller but by Acting Assistant Commissioner Maloney under power delegated to her. The primary judge accepted that it was Acting Assistant Commissioner Maloney who had made the decision to make the s 25(1) application. This decision was said by the Applicant to have been vitiated by various matters reflected in the particulars. To the extent that the primary judge rejected the Applicant’s claims at first instance that Acting Assistant Commissioner Maloney had prejudged the matters put to her for consideration by the Applicant, had not given them genuine consideration or would be perceived to have been biased in her consideration of those matters, the primary judge’s conclusions were challenged as wrong.

35. It was contended that the primary judge “erred in jurisdiction by granting the application by the Respondent under section 25(1) of the Summary Offences Act 1988 (NSW) where the preconditions in s 25(2)(b) and/or (c) to the making of that application had not been satisfied”. In short, the Applicant’s argument was that, because in terms s 25(2) of the Act provided that:

“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 …” (emphasis added),

any failure to comply (or lawfully to comply, that is to say, to comply without bias) with the steps that were prescribed in s 25(2) of the Act deprived this Court of jurisdiction.

36. The formulation of the grounds of appeal by the Applicant in the way described above recognised the statutory restrictions on an appeal from the decision to prohibit the proposed assembly (see [14] – [21] above). It is important to emphasise that the Applicant did not attack the ultimate discretionary decision of the primary judge to prohibit the proposed assembly, but rather attacked this Court’s jurisdiction to have entertained the application for a prohibition in the first place.

37. In our opinion, such an attack does not amount to an appeal on a decision “on an application under section 25(1) or 26” within the meaning of s 27(2) of the Act, and that subsection did not stand in the way of the appeal. This is so for a number of reasons.

38. First, there is no incompatibility with the statutory language. Section 27(2) of the Act relates to an application under ss 25(1) and 26. It assumes the conditions for there being an application under either of those sections are satisfied, and prohibits an appeal from the evaluative decision of the judge as to whether or not the public assembly should be prohibited or (in the case of s 26) permitted. This is consistent with the requirement for expedition. The section does not deal with the situation where it is contended that any preconditions for the bringing of an action under ss 25 or 26 have not been met.

39. Secondly, the Court either had jurisdiction or it didn’t. The common sense rationale for denying a right of appeal identified at [18] above does not apply with the same force to a question concerning the Court’s jurisdiction to make orders with important public consequences, whether or not those consequences entail the prohibition or authorisation of a public assembly.

40. Thirdly, the appeal is tied directly to the Cross-Summons and its dismissal. That process was not an application under ss 25 or 26 of the Act. Rather, it sought declaratory relief in respect of this Court’s ability to entertain the Commissioner’s application under s 26 in the circumstances of the case.

41. It follows that the Court must entertain the Applicant’s appeal. Although in form the Applicant sought leave to appeal, as the decision to dismiss the Cross-Summons was a final decision going to a question of jurisdiction, the Applicant did not require leave to appeal.

42. For the reasons that follow, however, the appeal did not succeed.

Consideration

43. The Applicant accepted that unless the consequence of non-compliance with the procedures prescribed in s 25(2) of the Act was to deprive this Court of jurisdiction, whether or not there had in fact been non-compliance, including relevantly a want of procedural fairness, did not fall for consideration.

44. Accordingly, it is logical first to deal with the issue of jurisdiction, assuming for the purposes of the argument and contrary to the primary judge’s decision, that there had been relevant non-compliance with the requirements of s 25(2) of the Act, and that the Commissioner’s application was brought in the face of the prohibition on him doing so in the opening words of that subsection.

45. Writing extra-judicially (see M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at 41), Leeming JA has made reference to the complexity of:

“…legislation which prohibits commencing proceedings in a particular court. Such a statutory prohibition may operate in a variety of ways. It may possibly operate to deny jurisdiction, but more commonly rather than detracting from the court's jurisdiction it will impact upon the way in which it is exercised. For present purposes, what matters is that such provisions give rise to a threshold question of construction, and will be construed as denying jurisdiction only if the legislative will is clearly expressed.” (footnote omitted).

46. Writing judicially, in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [90] (2 Elizabeth Bay Road), Leeming JA observed that:

“A statutory prohibition in the form ‘A plaintiff must not commence legal proceedings unless [Condition] is first satisfied’ may bear a variety of different legal meanings. It may, on its proper construction, be directed to the courts and tribunals whose jurisdiction might be invoked without the condition being satisfied. The statute may operate in those circumstances to deny jurisdiction to the court or tribunal. If that be the true construction of the statute, then the court or tribunal will have no choice but to dismiss the proceedings for want of jurisdiction. However, such a construction will only be accepted where the legislative will is clearly expressed: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 at [38]. It is inappropriate to construe a provision expressed as a prohibition upon a litigant as a limitation upon jurisdiction without clear words or necessary intendment or (to use the language in Australasian Memory Pty Ltd v Brien [2000] HCA 30; 200 CLR 270 at [17]) ‘[c]ogent reasons’.”

47. His Honour made reference to a series of possible outcomes depending on the construction of any given statute containing a statutory prohibition of the kind identified. One possibility, referred to by his Honour at [94], was where:

“…a plaintiff with the capacity and the right to do so has invoked the jurisdiction of a court or tribunal but has done so contrary to a statutory prohibition which does not deny jurisdiction to the court or tribunal or require the jurisdiction to be exercised in any particular way. In that event, it is plain that the court may be asked to exercise a discretionary power in the procedural rules of the court or tribunal to require the plaintiff to adhere to the statute. The outcome of that exercise of discretion will turn on the particular facts of the case.” (emphasis in original).

48. The analysis bears some affinity with that applied to administrative decisions made where there has been non-compliance with a particular specified procedure: see, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. In both cases, it is a question of the proper construction of the statute.

49. In Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 (Berowra), the High Court considered and construed s 151C(1) of the Workers Compensation Act 1987 (NSW), which relevantly provided that:

“A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.”

50. The High Court rejected an argument that a pre-condition of the Court’s jurisdiction was the passage of six months since notice of the worker’s injury was given to the employer. Proceedings had been commenced within this six month window, and the worker accepted an offer of compromise. The employer’s attempt to have the proceedings declared a nullity, and to be given leave to withdraw the offer of compromise, failed.

51. In reaching this decision, the plurality in Berowra at [31] made reference to what it identified as the “basic rule”, that a legislature does not intend to cut down the jurisdiction of the courts “save to the extent that the legislation in question expressly so states or necessarily implies”. The Court also cited the well-known observation of Sir Owen Dixon in Parisienne Basket Shoes Proprietary Limited v Whyte (1938) 59 CLR 369 at 391; [1938] HCA 7 that:

“…[I]f the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.” (emphasis added).

52. A related rule to the “basic rule” referred to in Berowra is that most commonly associated with the High Court’s observation in The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54, namely that it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

53. In the present case, we do not discern any legislative intention to condition the existence of the jurisdiction of the Court (defined as the District Court and the Supreme Court) upon the lawful compliance by the Commissioner with the procedure set out in s 25(2) of the Act.

54. First, there is not to be found in Pt 4 of the Act which is concerned with “Public Assemblies” any express limitation on the jurisdiction conferred on the Court to entertain an application either by the Commissioner under s 25(1) of the Act, or the “organiser” under s 26(1) of the Act.

55. The plain intention of Pt 4 is that, if agreement cannot be reached between the organiser and the Commissioner in relation to a public assembly, the question as to whether or not the assembly should be prohibited (or authorised in the case of a s 26 application) is to be resolved by the Court, and that resolution is to occur with the “greatest expedition possible”: see s 27(1) of the Act. The Court’s function in this regard is, as the Commissioner submitted, important “not only for the organiser and the police, but for all persons who may want to participate in the assembly and all persons who may otherwise be affected by the assembly.”

56. The short time frame for the process also points powerfully against the Applicant’s jurisdictional argument. Whilst the Court undoubtedly has jurisdiction to determine its jurisdiction, contestable claims as to lawful compliance with the s 25(2) procedure (for example, where there are factual disputes as to what occurred at a conferral, or whether or not particular conduct amounted to bias or whether or not genuine consideration was given to representations) have the potential to interfere with the need for the Court urgently to make an assessment as to whether or not a proposed and contested assembly should be prohibited or authorised. That tells strongly against the Applicant’s argument.

57. The legislative forerunner to s 25(2) was s 6(2) of the Public Assemblies Act. In delivering the Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1979 at 4920), the then Attorney General, Mr Walker said of cl 6(2) of the Bill:

“As I have previously indicated, mutual co-operation is to be encouraged by this legislation. Clause 6 (2) is aimed at bringing together the organizer of the assembly and the police for a conference to discuss the proposed assembly.”

Nothing in the secondary materials suggests that non-compliance or unsatisfactory compliance with the consultation requirement contained in s 25(2) of the Act and its legislative forerunner was intended to denude the Court of the important jurisdiction conferred on it by the Act.

58. True it is that s 25(2) of the Act, consistent with the legislative history, requires a practical and sensible process of engagement and potential negotiation to be followed by the Commissioner (or his delegate) and the organiser. A failure to adhere to the process contemplated by s 25(2), however, does not affect any accrued rights. Where a Notice of Intention has been given at least 7 days prior to the proposed assembly and the other requirements of s 23 of the Act have been satisfied, the proposed assembly will be an “authorised public assembly”, unless and until an order under s 25(1) of the Act is made by the Court. The benefits under s 24 of the Act which flow from that fact are not affected by any failure by the Commissioner to follow the procedure specified in s 25(2) of the Act. Nor are they affected by the mere making of an application by the Commissioner for a prohibition order by the Court, exercising the jurisdiction vested in it under s 25(1) of the Act.

59. In circumstances where the legislature has clearly evinced an intention that the Court be the ultimate decision maker as to whether to prohibit or authorise a public assembly which is either opposed or not “not opposed” (see s 26(b)) by the Commissioner, it is unlikely that the legislature intended to deprive the Court of that jurisdiction because of the non-fulfilment of a procedural step, especially in circumstances where the proposed assembly is, ex hypothesi, contentious.

60. This analysis is reinforced by the fact that such a construction does not leave the organiser without an opportunity fully to ventilate his or her arguments for resisting prohibition. It simply has the consequence that, where that has not first occurred in a s 25(2) conferral or consideration, a full opportunity will be provided in a judicial hearing where any discretion to prohibit (or authorise, as the case may be) will need to be exercised judicially. Indeed, this is one of the rationales given for construing a Court's jurisdiction broadly and not reading it down by implication: see Knight v F.P. Special Assets Limited (1992) 174 CLR 178 at 185, 202-203 and 205; [1992] HCA 28.

61. Moreover, in any such consideration by the Court, it will be open to the organiser to draw attention to any failure by the Commissioner properly to confer or to take into account relevant matters. Furthermore, such failure may influence the exercise of discretion. For example, depending on questions of timing and urgency, it would be open to the Court to stay or even refuse (see Bassi at [49]-[50]) any application for prohibition until consultation had occurred or, if prior consultation was in some way procedurally tainted, as was argued to be the case in the present matter, until that process had been properly performed.

62. Alternatively, the failure to have followed the s 25(2) process may sound in an adverse order for costs against the Commissioner, even in circumstances where a proposed assembly is prohibited by the Court.

63. To echo the words of Leeming JA in 2 Elizabeth Bay Road at [94], “[t]he outcome … will turn on the particular facts of the case”.

64. The foregoing is not to deny that the Commissioner may fall under an obligation to give an unbiased and genuine consideration to matters put at conferral or in any representations under the s 25(2) procedure, and counsel for the Commissioner accepted that the Commissioner was under an obligation to afford procedural fairness, albeit noting, consistent with authority, that the content of natural justice may vary and depends very much on statutory context: see, for example, Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]. Such a failure, however, is not connected to, still less conditioned the existence or otherwise of this Court’s jurisdiction to make an order under s 25(1) of the Act.

65. It may also be observed that the logic of the Applicant’s argument is that, if the Applicant had served his s 23(1) Notice of Intention less than 7 days prior to the proposed assembly, but had not received a notification from the Commissioner that the Commissioner did not oppose the holding of the public assembly (see s 26(b) of the Act), the Court would not have jurisdiction to entertain any urgent application by the organiser for authorisation. That is also a consequence that was unlikely to have been intended by the legislature.

66. Because of the conclusion to which we have come, namely that the Court’s jurisdiction to make an order prohibiting a proposed assembly pursuant to s 25(1) of the Act does not depend upon compliance (or lawful compliance) with the procedure set out in s 25(2) of the Act, it is not necessary to consider the Applicant’s attack on the primary judge’s decision that there was no relevant non-compliance, save perhaps only to observe that a number of those challenges would have needed to overcome the important limitations upon an appellate court’s ability to interfere with findings of fact: see Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 at [43].

Conclusion

67. Because of the urgent nature of the appeal given the imminence of the proposed assembly, we announced our orders dismissing the appeal and making no order as to costs at the conclusion of the hearing of the appeal, after a short adjournment.

68. The foregoing constitutes our reasons for making those orders.

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Decision last updated: 28 July 2020