As a result, all attendees at the Protest would have been in breach of the 10-person limit in respect of public gatherings pursuant to the latest Coronavirus Restrictions. Additionally, they may have also been liable for the obstruction of traffic and similar offences and therefore, potentially subject to police action.
Hundreds of police officers gathered in the area, some on horseback, some fitted out in complete riot gear. There was not a street corner in which police were not present in large numbers.
In only moments, thousands of protestors were going to take to the streets to demand action for the mistreatment of Indigenous Australians by police and related agencies.
Attending the Protest as a team of legal observers and legal volunteers, within the crowd, we could see fear, concern, anger, and sadness on the many faces that were there to demand justice.
It was an unsettling atmosphere as we prepared for what we thought would be a day involving, mass arrests, violent interactions with police and many protestors facing fines and criminal charges.
The protest was due to start at 3pm, as we edged closer and closer to the start time it felt like we were being amassed in a pressure cooker. The tension in the air seemed to thicken as time ticked by.
However, with only minutes to go, at precisely 2:46pm we received the text message that changed the day and the fate of thousands.
Enter Stephen Lawrence and Felicity Graham:
“The Court of Appeal has set aside Judge Fagan’s Order and declared that the protest in an authorised public assembly, spread the word hard”.
If we ever knew what a sigh of relief was, it would have been that moment there. Shouting at the top of our lungs trying to inform the thousands around us, within moments the news hit the microphone.
The announcer yelled as though it were the best thing that he had ever had the opportunity to say:
“Breaking news: live now from the Supreme Court, the people can march!”
It is difficult to explain the relief and joy that the news brought to the thousands in attendance. It felt like the clock had just hit midnight on New Year’s Eve.
The animosity, the fear, and the concern were shredded to pieces instantaneously. People hugged and rejoiced as police retreated away from the crowds.
Had the protest not been “authorised” it is likely that thousands would have be fined, arrested, and charged, if not worse.
As NSW Police Assistant Commissioner Mick Willing said, “Initially, we had a tough job in Sydney as the police operation was already underway when the Supreme Court decision was overturned, but we rapidly changed plans to ensure the event would run smoothly.
Who knows what those plans would have involved, yet it was the unexpected last-minute effort of two people that changed the fate of thousands, and best of all, they did it for free, they did it to support a cause that they believed in.
Who are the two barristers that saved the day?
We have had the privilege of working with Stephen Lawrence and Felicity Graham for many years now and we can only describe them as true warriors for justice.
If there is ever a legal fight for a just cause in New South Wales, you are bound to see their names.
They are the barristers that New South Wales has been able to count on whenever injustice needed a voice to stand against it.
In fact, at times, there sense for justice has extended far outside our borders. They attracted the name “Warriors for Justice” when they represented 19 Nauruan’s who had been the subject of malicious prosecution and improper political interference.
However most importantly, both Stephen and Felicity have stood tall and firm for Indigenous legal issues.
Having both spent a significant portion of their careers as lawyers working for the Aboriginal Legal Service, they are well accustomed to the over prosecution and mistreatment of Indigenous Australians.
So, when the time came to make a difference, both Stephen and Felicity stepped up to the plate. Without benefit or reward, they took the fight to the Court of Appeal and their actions saved thousands from unnecessary arrest and prosecution.
How did they change the Supreme Court’s decision not to authorise the protest?
To explain how Stephen and Felicity were able to reverse Judge Fagan’s decision, we must carefully explain three things:
1- The key concepts surrounding protest laws in New South Wales.
2- The timeline of events in respect of the Black Lives Matter Protest; and
3- The original decision of Judge Fagan.
Protest laws in New South Wales
Despite a common misconception, the Australian Constitution does not expressly provide the Australian people with a right to protest.
The Australian Constitution does not even expressly provide a right to freedom of political communication.
In fact, the Constitution provides very little rights or freedoms to Australians expressly.
Instead, the right to freedom of political communication had to be implied into the Constitution by the Hight Court of Australia in the landmark case of Lange v Australian Broadcasting Corporation (“Political Free Speech case”).
The High Court held that the freedom of political communication was implied through the interpretation of several sections of the Constitution as an “indispensable incident” to those sections. Meaning that those sections could not logically operate if freedom of political communication were not implied.
However, the High Court’s ruling in Lange did not mean that freedom of political communication was an absolute right that could not be curtailed by other laws.
The High Court held that a law that impacts freedom of political communication will still be valid if the law was “reasonably appropriate and adapted to achieving a legitimate object or end”.
In New South Wales, there is no specific legal power that enables the Government, the Police or the Courts to ban or make a protest illegal. That is because any such law could not be seen to have a legitimate object or end.
However, other laws in New South Wales could still impact a person’s right to protest indirectly and could be seen to have a legitimate end or objective.
The most obvious of these laws is the current Coronavirus Restrictions which restricts public gatherings to no more than 10 people. Other common examples include traffic obstruction laws.
The only power in respect of protest laws in New South Wales is contained in Part 4 of the Summary Offences Act.
It is difficult to understand why protest laws were included in the Summary Offences Act when none of the sections relevant to protests create an offence.
That is because the Summary Offences Act cannot be used to ban or make a protest illegal.
Rather, the Summary Offences Act can only be used to “authorise” or “prohibit” a protest. Although, in this context, both “authorise” and “prohibit” means something very different.
What are “authorised” and “prohibited” protests?
When it comes to protest laws, the words “authorise” and “prohibit” are not given their ordinary meanings.
Unfortunately, these words are the product of extremely poor drafting and confusing legislation.
The use of the word “prohibit” is especially one that is bound to confuse. That is because “prohibit” in the context of protest laws does not mean that the protest is unlawful, banned, or illegal.
It just means that a protest which was authorised is no longer “authorised”. This will come to make more sense as we continue to breakdown these laws.
So, what is an authorised protest?
Under Section 24 of the Summary Offences 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 legal immunity is in respect of the obstruction of traffic. If a protest is authorised, a person can walk on the roadway within the planned protest route without being guilty of obstructing traffic.
If a protest is prohibited, it just means that this immunity has been removed and therefore if a person walked on the roadway, they could be charged with obstructing traffic.
“Authorising” or “prohibiting” a protest has nothing to do with the legalities of the protest itself.
However, having a protest authorised in the current climate takes on a whole new level of importance because of Covid-19.
That is because the current Coronavirus Restrictions prohibit public gatherings involving more than 10 people.
Therefore, if the Black Lives Matter Protest was not authorised, every person in attendance would have been in breach of the public gathering restriction and potentially subject to a fine or even arrest if they refused to leave the Protest.
How does a protest become “authorised” or “prohibited”?
In New South Wales, to have a protest “authorised”, written notice of the intention to hold the protest must be served on the Police Commissioner. The notice must include:
1- All relevant information such as the date, time, and place for the protest; and
2- The number of people expected to participate in the protest; and
3- The service details of the person who is taking responsibility for organising and conducting the protest. This person must also sign the notice.
If notice of the protest is served on the Police Commissioner at least 7 days before the date of the protest, then the protest is deemed to be authorised unless the Police Commissioner applies to a Court to have the protest “PROHIBITED”.
This is where the term “prohibit” comes from.
The effect of prohibition simply means that the protestors will no longer have the legal immunity of an authorised protest. It does not mean that the protest is illegal or banned.
However, if the notice was served on the Police Commissioner less than 7 days before the protest date. Then it will be up to the protest organisor to apply to a court to have the protest “AUTHORISED”, if the police Commissioner does not consent to the protest taking place.
This is where the word “authorised” comes from.
Again, all that authorise means in this context is that, if granted, the participants will be immune from prosecution from offences that they would commit by virtue of their attendance at the protest.
So, in effect, whether a protest is “authorised” or “prohibited” really just means that the protestors will either have immunity or they will not.
The Black Lives Matter Protest timeline
1- On 29 May 2020, Mr Raul Bassi of the Indigenous Social Justice Association (ISJA) emailed the Sydney City Area Police Command to notify the Commissioner of Police of an intention to hold a vigil on 06 June 2020 at approximately 3:00pm.
The Vigil was to take place at 20 Lee Street, Chippendale, NSW, outside the Department of Corrective Services. The Notice estimated that there would be 50 people in attendance.
2- By 03 June 2020, the number of people who had indicated their attendance at the Protest had grown to 8000.
Mr Bassi accordingly contacted Chief Inspector, Paul Dunstan to notify him of the increase in numbers.
3- On 04 June 2020, Mr Bassi and Chief Inspector, Paul Dunstan met at 20 Lee Street to discuss their options.
Upon meeting, it was common ground that the Vigil could no longer be held at 20 Lee Street due to the number of people attending.
During these discussions, it was proposed that the public assembly could be held at Town Hall followed by a march to Belmore Park where the Vigil could take place.
Based on the discussions, Mr Bassi understood that the parties agreed to amending the Notice and that the Police would not oppose the Protest.
In fact, the police agreed to amend the Notice on behalf of the parties as Mr Bassi was too busy to do so.
4- Later that day on 04 June 2020, the Police sent Mr Bassi the amended Notice as they had discussed and asked him to confirm that he was happy with it.
Mr Bassi agreed and sent back correspondence to the police indicating that he was happy with the amended Notice.
5- On 05 June 2020, there seemed to be a complete backflip on the police position. Chief Inspector, Paul Dunstan called Mr Raul indicating that the Police will be taking action in the Supreme Court to have the protest prohibited.
6- On the same day, 05 June 2020, the Police filed an urgent application in the Supreme Court to have the protest “prohibited”.
The initial proceedings before Justice Desmond Fagan
At the very least there seemed to be a conflict of interest in the fact that the police were going to the Supreme Court to stop a protest that was focused on demanding action against police brutality and impropriety.
It would be open to assume that the police position in respect of the Protest would be somewhat biased and imbalanced.
Nonetheless, the police pressed on with the application to prohibit the Protest.
The matter appeared before Judge Desmond Fagan of the Supreme Court and at approximately 8pm, Justice Fagan made the following findings:
1- That the fact that the Police were the ones to draft the amended Notice did not mean that they consented to the Protest taking place. Rather, Justice Fagan held that the police were just trying to assist Mr Bassi “through the good officers of Sergeant Hallet”.
2- The fact that the Notice was amended on 04 June 2020 meant that it became a new notice and therefore it was no longer served within 7 days of the Protest.
This meant that despite the Police applying to Supreme Court to prohibit the protest, that was no longer necessary, because Judge Fagan found that the notice was not served within 7 days.
This meant that Mr Bassi had to make an on the spot cross-application to have the protest “authorised”.
This became the most significant point on the appeal.
3- Judge Desmond Fagan refused to “authorise” the Protest on the basis that the public health risk was too great if the protest went ahead.
The appeal to the Court of Appeal on 06 June 2020
Generally, the law does not allow for fresh appeals in respect of decisions made about protests under the Summary Offences Act.
The only way an appeal can be made is to show that the Judge made an error of law in the original decision.
Stephen and Felicity immediately identified the obvious error and filed an immediate appeal to the Court of Appeal to be heard the very next day, only hours before the Protest.
Cutting through the legalese, the effect of the appeal was that Judge Fagan incorrectly decided that the amended Notice amounted to a new notice and that therefore Judge Fagan also incorrectly found that 7 days’ notice had not been given to the Police Commissioner.
This also meant that Judge Fagan had made an error in requiring Mr Bassi to have the protest authorised, as opposed to having the Police prohibit it.
The Court of appeal constituted by Justices Bathurst, Leeming and Bell heard the appeal at approximately midday on 06 June 2020.
Their Honours upheld the appeal on the basis that Judge Fagan had erred by finding that the amended Notice amounted to a new notice.
The finding meant that the Protest was an authorised one unless the Police commissioner applied to prohibit it, because the original notice was given to the police at least 7 days before the protest.
However, the Police had already withdrawn their application to “prohibit” the protest when Judge Fagan interpreted that the amended Notice was a new notice and therefore notice had not been given within 7 days.
Although the Barrister acting for the Police Mr Michael Spartalis attempted a last-minute effort to reinstate the original application to prohibit the Protest, His Honour Chief Justice Bathurst shut the suggestion down quickly and abruptly.
Sometimes, you just can’t have your cake and eat it too.
24 Hour Free Criminal Lawyer Hotline
If you or someone you know was arrested, charged, or fined at the Protest we would like to talk to you.
Please call our 24 hour Free Sydney Criminal Lawyer Hotline on 1300SILENT (1300-745-368)