Can the Supreme Court Ban the Black Lives Matter protest?
No, absolutely not. The Supreme Court does not have the power to “ban” any protest.
Rather, the Supreme Court has the power to either authorise or prohibit a protest. However, the words “prohibit” and “authorise” are not given their ordinary meanings in this context.
The words “prohibit” and “authorise” in this context are largely related. The only difference in the word that is used is dependent on the circumstance in which the notice of the protest is given.
To explain this concept fully, we must examine the laws surrounding protests in New South Wales.
What is an authorised protest?
The laws surrounding protests are contained largely under Part 4 of the Summary Offences Act under the heading “Public Assemblies”. They are poorly drafted and confusing to say the least.
However, what is clear from these laws is that the Supreme Court does not have the power to ban a protest. Instead, the Supreme Court can essentially choose to either authorise a protest or not.
In this context, “authorise” does not mean whether a protest is allowed or not allowed.
Rather, under Section 24 of the Act, if a protest is “authorised”, it just means that participants at the protest will be immune from prosecution in respect of offences that they would otherwise commit by virtue of their attendance at the protest.
The best example of this immunity is in respect of the obstruction of traffic. If a protest is authorised a person can walk on the road within the protest route without being guilty of obstructing traffic.
If a protest is prohibited, it just means that this immunity does not apply. It does not however make the protest illegal or banned.
Going back to the example, if a protest is not authorised, participants could walk on the footpath instead of walking on the road and as long they were not committing any other offence the protest would be perfectly legal.
However, due to Covid-19 this becomes slightly more complicated as we discuss further below. Although, before we do that, it is important to consider how a protest becomes authorised.
How does a protest become authorised?
In New South Wales, under Section 23, an application to authorise a protest must be made as follows:
1- Written notice of the intention to hold the protest must served on the Police Commissioner; and
2- The notice must contain all relevant information such as the date, time and place for the protest; and
3- The notice must specify the number of people expected to participate in the protest; and
4- The notice must include the service details of the person who is taking responsibility for organising and conducting the protest. This person must also sign the notice.
Once the Notice is served, the Police Commissioner can either consent to the protest taking place, meaning that the protest will be authorised, or alternatively the Police Commissioner can oppose the protest taking place.
If the police commissioner opposes the protest, one of the following will need to occur depending on when the notice was served:
1- if the notice was served on the Commissioner at least 7 days before the date of the protest then the protest is authorised unless the commissioner applies to the Supreme Court under Section 25 to “PROHIBIT” the protest.
This is where the term “prohibit” comes from.
The effect of prohibition in this circumstance means that the protest will no longer be authorised, meaning that participants are no longer immune from prosecution if they commit other offences by virtue of their attendance at the protest, such as obstructing traffic.
However, as discussed above this does not mean that the protest is illegal or banned.
2- If the notice was served on the Commissioner less than 7 days before the protest date. Then the organiser of the protest must apply to the Supreme Court under Section 26 to “AUTHORISE” the protest if the commissioner opposed the protest.
Again, all that authorise means in this context is that the participants will be immune from prosecution from offences that they would commit by virtue of their attendance at the protest.
This is where the terms “authorise” and “prohibit” come from.
Who made the application to the Supreme Court for the Black Lives Matter Protest?
Although it was largely reported that the New South Wales Police applied to the Supreme Court to prohibit the Black Lives Matter Protest, that was not the case.
That is because the Notice in respect of the Black Lives Matter Protest was not served on the police commissioner outside 7 days of the protest taking place. Instead, the Police Commissioner opposed the Black Lives Matter Protest taking place.
Therefore, by virtue of the timing of the Notice, it was for the organisers of the Black Lives Matter Protest to have the protest authorised given that the police commissioner opposed the protest.
Unfortunately, the court refused to authorise the Black Lives Matter Protest meaning that if participants breach any laws by virtue of their attendance at the protest, they will be liable to criminal prosecution.
Why was it so important to have the Black Lives Matter protest authorised?
If this were ordinary times, it would mean little if the Black Lives Matter Protest were authorised or not.
The fact that the Protest was not authorised might have create some practical difficulties, for example, participants would not be able to walk on the road and would have to stick to the footpath instead.
However, as long as participants were not committing offences there would be nothing illegal about attending the Protest despite the Supreme Court’s refusal to authorise the Black Lives Matter Protest.
Enter Covid-19. Unfortunately, as with many things that Covid-19 has changed about lives, it has also changed our rights to protest.
That is because under the latest Corona Virus Restrictions introduced on 01 June 2020, public gatherings of more than 10 people were banned.
A public gathering is defined as a meeting or assembly of persons for a common purpose, including an organised or planned event in a public place (whether ticketed or not).
Our view is that the Black Lives Matter Protest will amount to a public gathering.
Therefore, by participating in the Black Lives Matter Protest, a person will be in direct breach of the latest Coronavirus Restriction.
This why it was so important for the Supreme Court to authorise the Black Lives Matter Protest. Because by doing so, participants would have been immune from prosecution for breaching the Coronavirus Restrictions.
Given that the Protest was not authorised, participants at the Black Lives Matter Protest will be in breach of the Coronavirus Restrictions.
The legal argument on behalf of the Black Lives Matter Protest
The Protest organisers made their position clear. Whether or not the Supreme Court authorised the Protest was irrelevant, the Black Lives Matter Protest was going to proceed as planned.
This became a part of the crafty legal argument that criminal defence barrister Emanuel Kerkyasharian used before the Court.
Mr Kerkyasharian argued that by not authorising the protest, people were going to be squashed into confined spaces on the footpath as opposed to being able to socially distance if the protest were authorised and people were able to walk on the roads.
Despite how compelling and rational that argument was, His Honour Justice Fagan of the Supreme Court rejected the argument and refused to authorise the Protest.
What offences will I be committing if I attend the Black Lives Matter Protest?
The most obvious offence a person will commit if they attend the Black Lives Matter Protest will be the breach of the Coronavirus Restrictions.
Section 10 of the Public Health Act (2010) NSW makes it a criminal offence not to comply with the Coronavirus Restrictions.
The maximum penalty that a Court can impose on an individual who breaches the Coronavirus Restriction is a fine of $11,000 or 6 months imprisonment.
However, Section 118 of the Public Health Act (2010) NSW allows police officers to issue on the spot fines as opposed to issuing court attendance notices.
The maximum fine that a police officer can issue an individual is $1000 as per Schedule 4 of the Public Health Regulation (2012) NSW.
Additional fines can also be imposed for continuing offences.
The other obvious offence is the offence of obstructing traffic if people do not stick to the footpath. The offence of obstructing traffic carries a maximum penalty of $440.
Can the police arrest me for participating in the Black Lives Matter Protest?
In New South Wales, police can only arrest a person under certain circumstances as set out in Section 99 of the Law Enforcement (Powers and Responsibilities) Act.
The circumstance that is most relevant to the Black Lives Matter Protest is the power to arrest a person to stop the person from continuing or repeating an offence.
In the case of the Black Lives Matter Protest, the continuing offence will be the breaching of the Coronavirus Restrictions.
However, if it is the case that thousands of people attend the protest as planned, it is extremely difficult to see how the police will be able to arrest everyone. It would basically be impossible.
We suspect that police will instead issue participants with $1000 fines for breaching the Coronavirus Restrictions.
Can the police give me a “move-on direction” for participating in the Black Lives Matter Protest?
Our view is that the police can also issue participants at the Black Lives Mattter Protest with move-on directions.
The circumstances in which the police can issue a person with a move-on direction are set out in Section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
The most relevant circumstance to the Black Lives Matter Protest is the obstruction of people and traffic.
If police are of the view that a person is obstructing people or traffic, the police may issue the persons with a move on direction.
If a person does not comply with the move-on direction they will be committing the offence of ‘failing to comply with move-on direction‘ under Section 199 of LEPRA.
The maximum penalty for an offence under Section 199 of LEPRA is a fine of $220.
However, failure to comply with the move-on direction might also be used as the basis for arresting the person.
That is because the police will rely on the fact that the person continued to commit the offence of failing to comply with move-on direction and accordingly that will activate police arrest powers in Section 99 as we discussed above.
What do I do if I encounter police and the Black Lives Matter Protest?
Here are the things that you need to keep in mind if you encounter police at the Black Lives Matter Protest:
1- That by virtue of your attendance you are in breach of the Coronavirus Restrictions and you are committing an offence.
2- If you are given a move-on direction we recommend that you comply with the direction as arguing will likely lead to your arrest or the issuing of an infringement notice.
3- If police decide to talk to you, respectfully inform them that you intend on recording the conversation on your mobile phone. Do not shove the phone in the officer’s face and do not be rude about the process.
4- Ask the police officer to identify themselves, including their name, rank, and station.
5- Ask the police officer why they have stopped you.
6- If the police decide to interrogate or question you, respectfully inform them that you do not wish to participate in any form of questioning or interview.
7- Ask the police if you are free to leave?
8- If they request your name and address provide those details to them.
9- Again, respectfully indicate to them that you would like to remain silent and that you would like to leave.
10- If you are given a fine do not argue or discuss this further with the police officer, it will not change the outcome. Take the ticket and walk away. If there is a basis to challenge the fine, the place to do so is at court.
11- If you arrested, do not resist, and do not fight back, this will only lead to a more problematic situation. Loudly indicate that you are not resisting and offer your hands to the police. If you see by standers, ask them to video record to arrest. If it is an illegal arrest the place to fight it is not on the side of the road.
12- Keep in mind, being rude or discourteous to police will not get you anywhere. You can invoke your rights in a peaceful and respectful way. We do not in any way support rude or discourteous behaviour toward the police.
Free Legal Advice to Black Lives Matter Protestors
As a result of the anticipated protest and the anticipated legal issues that will arise, we will have legal observes and legal volunteers attend within the vicinity of the protest to assist and give free legal advice to participants.
Our 24 hour Free Sydney Criminal Lawyer Hotline will also be in operation all day. To get in touch with one of our lawyers please call us on 1300SILENT (1300-745-368)