Case Summary and Outcome

The Supreme Court in New South Wales, Australia, granted a request from the assistant commissioner of police to prohibit a gathering in Sydney, Australia because of concern over COVID-19 transmission. After an individual submitted a notice for a planned gathering to protest against Aboriginal deaths in police custody, the assistant commissioner applied to court for an order to prohibit the gathering. The Court recognized the importance of the right to freedom of assembly, but found that the context of the COVID-19 transmission risk at the time and the location of the planned gathering in the middle of the city on a weekday meant that it was reasonable to approve the prohibition request.

Facts

On July 14, 2020, Padraic Gibson, an Australian citizen, submitted a “Notice of Intention” form indicating his intent to hold a public assembly and procession in Sydney, Australia on July 21. Part 4 of the Summary Offences Act addresses “Public Assemblies” and requires that a notice, setting out various details of the proposed assembly, be sent to the Commissioner of Police, after which the Commissioner can decide whether to authorize the assembly. Gibson’s proposed assembly was to “protest against Aboriginal deaths in custody and demand justice for Davie Dungay Jnr” [para. 3]. Dungay had died in 2015 in a Sydney jail, and Gibson was organizing the assembly on behalf of the Dungay family. The assembly would start at Sydney Town Hall Square at 12h00, and from 12h30 move along a route identified in the notice and end outside the State Parliament House. Gibson estimated that 500 participants was “an optimistic estimate” [para. 2].

On July 15, 2020, Gibson received a “Notice of Invitation to Confer” from a representative of the Commissioner of Police, the Acting Assistant Commissioner, Stacey Maloney. Maloney indicated that she opposed the holding of the assembly because of “concerns about the health and safety of participants and the wider community associated with the ongoing COVID-19 public health issue” [para. 5]. On July 20, Maloney and Gibson met to “consider any further matters or representations” [para. 6].

After the conference between Maloney and Gibson failed to reach a resolution, Maloney approached the New South Wales Supreme Court. Maloney sought an order under the Summary Offences Act to prohibit the holding of Gibson’s planned gathering.

There is no Bill of Rights in the Australian constitutional framework, but the Australian courts have found that there is an “implied freedom of political communication” in the Constitution.

Decision Overview

Judge Ierace delivered the judgment of the Supreme Court. The central issues for the Court’s determination was whether the Public Health Order was ultra vires by impermissibly burdening the implied freedom of political communication, and if Maloney’s prohibition order should be granted.

Gibson argued that the Public Health Order was unconstitutional “because it impermissibly burdens the implied freedom of political communication”. He submitted that the Court needed to refuse the Commissioner’s application so as to ensure that the implied freedom is protected. Gibson argued that a prohibition order was not necessary as there was a “less restrictive means of balancing public health goals with the public assembly” which would be to impose “risk mitigation strategies” on the assembly [para. 18]. Gibson maintained that he had proposed steps to “minimize the risk of transmission of the COVID-19 virus which … are sufficient, effective and at least on par with the requirements that apply to gatherings of 20 or more persons that are exempted [under] the Public Health Order” [para. 61]. He submitted that his experience with protests meant he “would take all reasonable steps to alleviate the risk of COVID-19 being transmitted” and that the presence of “deeply-respected Aboriginal Elders” would serve as an encouragement to participants to adhere to the protocols [para. 76]. One of Davie Dungay’s nephews had argued in an affidavit that the gathering should go ahead because it was important to maintain the momentum that had been created in the United States with the Black Lives Matter protests earlier that year.

Maloney argued that she had opposed the holding of the gathering as it “would bring about a risk to attendees, attending police, and/or other members of the public in the vicinity of the public assembly being exposed to the possibility of transmission of the COVID-19 virus” [para. 62]. She believed, based on seeing that 1200 people had indicated on the Facebook invite that they would attend, that the participants would be greater than Gibson’s expected 500. She also based her decision on her experience of public gatherings, and expected the participants to “stand and march in close groups, often chanting” which would facilitate the “oral discharge of saliva” which would increase the risk of COVID-19 transmission [para. 64].

The Attorney General of New South Wales, as an intervenor in the case, argued that a burden on political communication has to be “assessed by reference to how the relevant legislative provision affects the implied freedom generally, and not by reference to the burden placed on a particular group’s ability to engage in political communication” [para. 19]. The Attorney General maintained that the Summary Offences Act is legitimate and suitable “as it empowers a Court to decide whether or not to authorise such a public assembly after balancing competing interests” and that it was necessary because “there is no reasonably practical means of achieving the same purpose that is less burdensome on the implied freedom” [para. 20]. It also submitted that the “law is adequate in its balance as it gives the Court the ability to balance the competing interests in arriving at its decision” [para. 20].

The Court referred to a recent Court of Appeal case, Bassi v. Commissioner of Police (NSW)  in discussing the nature of the Summary Offences Act provisions. It also referred to a New South Wales Supreme Court case, Commissioner of Police v. Gray, which had examined the application of the Public Health Act to public assemblies. The Gray case had recognized that the Public Health Act confers power on the Minister of Health to “give directions by order to deal with public health risks” [para. 12]. At the time, an order issued under the Public Health Act prohibited outdoor public gatherings of more than 20 people which did not meet the criteria of gatherings set out in the order.

The Court referred to Clubb v. Edwards; Preston v. Avery which set out the test to determine whether “legislation impermissibly burdens the implied freedom” [para. 16]. This test – referred to as the McCloy test as it was first established in McCloy v. New South Wales  – requires courts to ask “does the law effectively burden the implied freedom in its terms, operation or effect”, and then, if the answer to that is “yes”, to ask if the law’s purpose is legitimate “in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” [para. 16]. If that question is also answered in the affirmative, a court must ask the third question of “is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” [para. 16]. It is at that third stage that the court applies a proportionality analysis to determine the suitability of the law “in the sense that it has a rational connection to the purpose of the law” and its necessity “in the sense that there is no obvious and compelling alternative, reasonably practical means of achieving the same purpose which has a less burdensome effect on the implied freedom” [para. 16]. The last assessment requires the court to determine “whether the challenged law is ‘adequate in its balance’ … the balance between the importance of the purpose served by the law and the extent of the restriction it imposes on the implied freedom” [para. 16].

The Court acknowledged that both parties accepted that the Summary Offences Act did burden the freedom, its purpose was legitimate and it was suitable as “it is rationally connected to the purpose of allowing certain public assemblies to take place without sanction and prohibit others from taking place” [para. 21]. The Court focused on the necessity element of the proportionality analysis and whether the law was “adequate in its balance”.

The Court held that the law was necessary, as there was “no obvious and compelling, or reasonably practical alternative to achieving the purpose of the provision”, and that it was adequate in its balance as “it allows the Court to take into account a wide range of considerations and to limit the restriction imposed on the implied freedom where free speech and political communication considerations prevail over others” [para. 22].

In referring to other cases in which it had had to consider public assemblies during the COVID-19 pandemic, the Court noted that it had “carefully undertaken this balancing exercise, and recognized the importance of public assembly and free speech” [para. 23]. The Court quoted the judgment in the Gray case which had stressed the importance of public political gatherings and had not granted the prohibition order sought in that case “deciding that free speech interests prevailed over public health and other concerns” which, the Court identified, was “the decision with the lightest burden on the implied freedom” [para. 25].

It was the “range of outcomes available in the exercise of the discretion … and the balancing exercise” that encouraged the Court to accept that the Act’s provision was constitutional. Accordingly, the Court held that Gibson had not made the case for the unconstitutionality of granting the prohibition order.

The Court considered Maloney’s application for a prohibition order, which turned on the public health concerns. It noted that this was the fifth similar application and recognized “the central importance of free speech and the right to advance political causes by demonstrations” [para. 80]. The Court also accepted that there was “a risk of momentum being lost in this campaign if public demonstrations in support of the ‘Black Lives Matter’ movement, in the Australian context, do not continue to be held” and acknowledged that there was no evidence of COVID-19 transmission at a Black Lives Matter protest in Sydney, in June 2020, which had 10 000 participants. However, the Court distinguished the present context from that Black Lives Matter protest as the expert evidence on the risk of transmission had risen from “low” to “medium”, and noted that Gibson’s assembly was due to take place on a weekday in the centre of Sydney where there would be large numbers of bystanders.

The Court held that, “the balancing of the competing concerns of the right to free speech and to demonstrate, as against the safety of the community at large”, the prohibition order should be granted [para. 84]. Accordingly, the Court granted Maloney’s application for the prohibition order.