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The Court of Appeal Decision about the #Black Lives Matter Protest March

Virtually everybody in NSW will be aware that on the afternoon of Saturday 6 June 2020 a large protest march occurred in Sydney in support of #BlackLivesMatter movement – precipitated by the death of George Floyd in the USA but also referrable to various Aboriginal deaths in custody in Australia.

The Supreme Court, on application by the Commissioner of Police, originally prohibited the march (on the evening of Friday 5 June 2020).  The Court of Appeal heard an urgent appeal the following day – reversed the decision and allowed the protest march to continue.  This note explains, very briefly, why that was so.

Ultimately, the decision really had nothing to do with concerns about the possible spread of Covid-19, although the Court of Appeal noted that was clearly a powerful and reasonable consideration for the Commissioner in making his application.  Rather, the Court looked carefully at the provisions of the Summary Offences Act.  That is the legislation under which people can seek permission to hold public assemblies.  Without being overly technical, the Act broadly provides that if a person applies to hold a public assembly more than 7 days in advance then, unless the police obtain an order prohibiting the assembly, it is lawful.  The evidence suggests (although this is not entirely clear) that the Commissioner originally agreed to the request for the protest march.  When it later became apparent the number of people likely to attend would far exceed the estimate in the original application, there was a further meeting and the application was modified, in part to increase the estimate of crowd numbers.

One of the key issues before the primary Judge was whether that ‘ modification’ made the application a new one, and therefore one made less than 7 days before the planned event – in which case it was up to the organiser to get a Court order permitting the assembly.  The primary Judge thought that the modification did make it a new application and refused permission for the assembly.

The Court of Appeal took the opposite view and decided that the ‘modification’ of an earlier application was permissible under the Act; and, on the evidence, that the Commissioner had notified ‘non-opposition’ to the modified application. Consequently, it overturned the primary judge’s decision.

So, on the fairly narrow issue of statutory interpretation, the march was permitted.  The Court made clear that it was not making a decision about the competing public interests of the right to protest as against public health issues associated with Covid-19. It was simply applying the law as it related to obtaining permission for public assemblies:  Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109 (9 June 2020)

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