Talbot, Anna --- "The right to protest: Challenges during the pandemic" [2022] PrecedentAULA 17; (2022) 169 Precedent 18

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THE RIGHT TO PROTEST

CHALLENGES DURING THE PANDEMIC

By Anna Talbot

The COVID-19 pandemic has altered all of our lives – our rights and responsibilities – in previously unimaginable ways. One of the starkest impacts has been on the right to protest, which is recognised as a fundamental precept underpinning our democracy.

Governments have a reputation for disliking protest (also referred to as public or peaceful assembly in this article). Protests can challenge government policy or rhetoric or expose uncomfortable truths. But across Australia governments generally appreciate the importance of accommodating dissent: ultimately, flexibility strengthens governments.

The pandemic, however, has presented an unexpected challenge: having humans in proximity to one another has itself become the risk. Whether gatherings have the purpose, among others, of expressing a political opinion, celebrating a wedding or mourning a death, they have been regulated to protect the health of participants and the broader public. This was particularly the case throughout 2020 and 2021, when governments around Australia effectively pursued zero-COVID policies, seeking to eliminate COVID-19 infection and transmission entirely.

THE RIGHT TO PROTEST UNDER DOMESTIC AND INTERNATIONAL LAW

The right to freedom of peaceful assembly is recognised in the International Covenant on Civil and Political Rights (ICCPR),^[1] in Article 21. The right to freedom of expression is recognised in Article 19 of the ICCPR. Together, these rights comprise the right to protest.

The Human Rights Committee (the UN body that oversees the implementation of the ICCPR) makes it clear that spontaneous demonstrations, as ‘direct responses to current events’, are protected by the right to peaceful assembly.^[2] Generally, however, governments are expected to facilitate a means by which protesters can work with them to ensure protests happen in an orderly fashion and risks are minimised.^[3] Restrictions are only permitted to the extent that they are necessary and proportionate and are the least restrictive means of achieving a legitimate aim.^[4] Risk to public health is expressly identified as an exceptional reason for limiting public assemblies, including in cases of infectious diseases.^[5]

The rights to peaceful assembly and freedom of expression are not absolute rights: it is well-recognised that they must be balanced against other rights found in the ICCPR and other human rights instruments. Among these are the right to the highest attainable standard of physical and mental health, which can be found in Article 12 of the International Covenant on Economic, Social and Cultural Rights.^[6]

Australian courts have consistently recognised the importance of the right to peaceful assembly.^[7] The implied freedom of political communication is also one of the few constitutional protections found in the Australian Constitution (Constitution), acting as a bar on legislation that impermissibly burdens political communication (as distinct from an individual right, which it is not). This implied freedom requires assessment of whether legislation burdens political communication and, if it does, whether the purpose of the law is legitimate and compatible with the system of government proscribed in the Constitution. If it does burden political communication but is legitimate, the court will assess whether the law is ‘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’.^[8]

NOTIFICATION REQUIREMENTS

Queensland and NSW operate notification systems for protesters, whereby protest organisers are asked to notify the police of their planned assembly.^[9] While a protest is not deemed illegal if the requisite notification has not been made, ensuring that adequate notification is provided offers protection to the protesters, so that they are immune from prosecution for participating in the protest in line with what has been notified. Without the authorisation, participants in a protest are liable to be charged, for example, for obstruction or breach of COVID-19 safety regulations. Most of the litigation examined below has arisen in NSW after a notification has been provided to the police, who have subsequently sought to ban the protest in the courts.

In Victoria there is no state-wide permit system that operates to authorise protests. Rather, protest organisers are encouraged to contact the local council in which they plan to hold their protest, to ensure adequate provision can be made for the protest, including, if necessary, adequate law enforcement support.

Other jurisdictions have different permit requirements, relating to whether the protest is likely to block a public street, the nature of the land that the protest will be held on and the rules that prevail in the local municipality.^[10] During the pandemic, these rules have been complicated by public health orders seeking to limit the spread of COVID-19.

This article examines litigation that has taken place in NSW, Queensland and Victoria in defence of the right to protest throughout the pandemic. The vast majority of the litigation has taken place in NSW, due to the combination of the rules around protests and the public health orders that have been introduced to assist with managing the pandemic. Queensland and Victoria have both also seen a small amount of litigation. It is clear from a review of this litigation that courts continue to recognise the fundamental importance of the right to protest. Ultimately, however, they have considered that, given the risk to public health that the protest was said to represent, the balance weighed in favour of banning the protest.

LITIGATION ON PROTESTS IN NSW

Part 4 of the Summary Offences Act 1988 (NSW) (Summary Offences Act) details a regime of authorising public assemblies in NSW. If organisers provide at least 7 days’ notice of a protest, the default position is that the protest may go ahead unless the Commissioner of Police successfully applies to a court for a prohibition order under s25(1) of that Act. Before such an application can be made, the Commissioner must ensure that the organisers have the opportunity to confer with a member of the police force.

Since the commencement of the pandemic, a series of public health orders have been adopted under s7 of the Public Health Act 2010 (NSW), with the first such order being made on 15 March 2020.^[11] These orders have been pivotal to the litigation that has taken place in relation to planned protests. In the litigation, factors that have emerged as decisive include the adequacy of any alternative means for communicating the themes of the protest (in particular, social media); the relevance of the timing of the proposed assembly; and the prevailing public health risk at the time of the proposed assembly.

Response to Black Lives Matter protests

There has been significant support in Australia for the Black Lives Matter movement, which saw protests around the world following the tragic murder of George Floyd on 25 May by a police officer in Minnesota, USA. The movement in Australia focused on ongoing deaths of First Nations people in prisons and police custody, including the death of a young Aboriginal man who died in Sydney’s Long Bay Gaol in 2015 in circumstances similar to Mr Floyd’s death: he was held prone by prison officers in a position that inhibited his ability to breathe and ultimately suffocated at the hands of the officers.

Due to the timing of the protests, the Summary Offences Act emerged as the potential barrier to the ability of the people of NSW to add their voices to the global chorus. The NSW Police Commissioner (Commissioner) commenced a series of litigation seeking to prohibit protests in support of this movement. One matter succeeded on a technicality (see Commissioner of Police v Bassi [2020] NSWSC 710, outlined below in ‘The Bassi protest’); in another, Commissioner of Police v Gray (Gray),^[12] Adamson J considered that the prevailing public health risk did not justify the making of the prohibition order sought by the Commissioner. Other protests, however, were prohibited.

Arguments by protest organisers that the Supreme Court of NSW lacked jurisdiction to grant prohibition orders – or that the orders themselves constituted an impermissible impediment on the implied constitutional freedom of political communication – failed, with judges repeatedly finding that they were obliged to favour the restrictions imposed to prevent the spread of COVID-19 over the freedoms of expression and assembly. It was perhaps the inclusion of a rigorous COVID-19 safety plan that supported the Court’s finding that one assembly should be permitted (see Gray, outlined below in ‘The Gray protest’).

The prohibitions did not stop the protests, and may ultimately have increased the public health risk, with the protesters gathering without the protections of police support and COVID-19 safety plans. A number of protesters were arrested and fined.

The Bassi protest

On 1 June 2020, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (Public Health Order No. 3) came into force, with cl 10 restricting public gatherings to 10 people unless an exemption applied. There was no exemption for public assemblies, although cl 8 permitted gatherings of up to 500 people in outdoor premises and up to 100 people indoors (with certain exclusions applying).

Raul Bassi planned a protest in Sydney to take place on 6 June 2020 against ongoing First Nations deaths in custody, seeking to harness the momentum of the movement to remember the deaths of George Floyd and of the young Aboriginal man who had died in 2015, and other First Nations people who had died in custody.^[13] On 29 May 2020 Bassi notified the Commissioner of the intention to protest in accordance with s23 of the Summary Offences Act, estimating an attendance of 50 people.

On 3 June 2020, Bassi contacted the police to let them know that it was likely the number of attendees would be higher than had been previously notified, based on the social media engagement he had received. Bassi met with the police on 4 June 2020, advising that the number of attendees was likely to be around 5,000 and there was to be some change to the plans in light of the higher number. It was agreed that the police would prepare a revised notice reflecting the proposed changes, and the revised notice was emailed to Bassi on 4 June, noting that he should bring a signed version of the notice with him to the demonstration on 6 June 2020.

On 4 June 2020, four cases of COVID-19 had been reported in NSW in the 24 hours to 8:00pm, all of whom were in hotel quarantine. There were no COVID-19 patients in intensive care in NSW.^[14] Nationally, on 5 June 2020, an average of nine cases were reported per day, most in Victoria.^[15] These would have been the most recent statistics available to the Court at the time of the hearing.

On 5 June 2020, the matter was in the Supreme Court of NSW, with the Commissioner seeking a prohibition order under the Summary Offences Act and Bassi seeking a declaration that the Commissioner had notified him that the Commissioner did not oppose the public assembly.^[16] Justice Fagan declined to make the declaration, instead finding that the changes to the notice meant that a new notice had been provided on 4 June 2020, which had not been authorised as required by s26 of the Act.

During the course of the hearing, the Commissioner appeared to concede that the notice had been provided more than 7 days prior to the planned assembly by seeking the prohibition order under s25 of the Summary Offences Act (which permits the Commissioner to seek such an order if the notice has been provided ‘7 days or more’ before the proposed assembly). This application was ultimately not proceeded upon, allowing Fagan J to find that the original notice had become defunct due to the changes discussed on 4 June 2020. While acknowledging the importance of the rights of freedom of assembly and expression, ultimately Fagan J found that the public health risk outweighed these rights on this occasion, despite the safety planning Bassi had engaged in:

‘A gathering of 5,000 people who are interested in this particular cause, at a time when the entire community is under direction not to gather in groups of more than ten, is an unreasonable proposition.’^[17]

Justice Fagan did not accept Bassi’s argument that refusing to grant the authorisation would put the community at greater risk, as the assembly would still proceed, but without the safeguards of blocked streets, thereby forcing a great number of people into the smaller spaces available, such as footpaths.^[18]

Bassi appealed the following day, in advance of the assembly planned for 3:00pm that afternoon. This appeal was successful on a technicality, namely, that Fagan J erred in finding that the amended notice was in fact a new notice: the notice provided on 29 May 2020 had simply been amended on 4 June. Accordingly, the first instance decision was found to have been made in error and no order to prohibit the assembly had in fact been made.^[19] The assembly proceeded, and no instances of COVID-19 transmission were known to have been contracted at it.

The Kumar protest

A further prohibition order was sought by the Commissioner on 19 June 2020, this time in relation to a protest proposed by the National Union of Students.^[20] The purpose of the proposed assembly was ‘to show solidarity with the black lives matter movement and raise awareness about aboriginal deaths in custody’.^[21]

On 18 June 2020, two new COVID-19 infections were reported in NSW, both in travellers in hotel quarantine.^[22] The national average remained at 16 diagnoses per day over the previous 7 days, with Victoria remaining responsible for the majority of reported infections.^[23] Public Health Order No. 3 remained in force, although it had been amended on 13 June 2020 to allow for public gatherings of 20 people, increased from the previous limit of 10, and increasing maximum capacity at various venues.

Vinil Kumar’s primary arguments on behalf of the National Union of Students were, first, that the Court did not possess jurisdiction to make the proposed orders, as the Commissioner had failed to comply with s23(2)(c) of the Summary Offences Act. He also argued that other gatherings under Public Health Order No. 3 presented a comparable level of risk, and accordingly the proposed assembly should be considered an essential gathering due to the importance of both the subject of the protest and the right to protest more broadly.^[24]

During the hearing of evidence, Kumar conceded that he would not be in a position to control the number of attendees, who might attend, how attendees might conduct themselves or congregate, or whether they would wear a mask or be socially distant. He also conceded that he could not know whether someone at the event was sick. Assistant Commissioner Moore noted that a similar assembly held two weeks prior had attracted 1,500 attendees, three times the number that Kumar anticipated (500).^[25]

Justice Lonergan ultimately determined that, despite the low incidence of COVID-19 in the community at that time and the low risk of transmission at the assembly, the fact that a single case could lead to significant risk meant that the health risk was considered to outweigh the burden to the important democratic rights of freedom of assembly and expression. Her Honour noted the offer of the police to reschedule the assembly to a time when the public health risk had passed, which was rejected by Mr Kumar. Accordingly, in her Honour’s view, this decision should more accurately be viewed as a deferral of the right to assembly, rather than as an extinguishment of that right.^[26]

The Gray protest

A few weeks later, the Supreme Court was again balancing the right to protest against the public health risk of assembling in groups. On 3 July 2020, the Commissioner filed proceedings seeking an order under s25 of the Summary Offences Act prohibiting a public assembly planned by Taylah Gray for 5 July 2020. The sole reason for seeking the prohibition order was the risk to public health.^[27]

New South Wales had recorded eight infections on 2 July 2020.^[28] Nationally, the weekly average was 63 cases being reported per day, the majority of these in Victoria.^[29] The Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW) (Public Health Order No. 4), which had come into force on 1 July 2020, continued to limit public gatherings, but increased limits to a maximum of 20 people outdoors and allowed additional exemptions for casinos and sporting events (although no specific exemption referred to public assemblies).

Gray had provided notice of a protest in support of the Black Lives Matter movement in solidarity with First Nations people who had died in custody and against racism, this time on behalf of an organisation called Fighting in Solidarity Towards Treaties. The protest was to take place in Newcastle, with an estimated attendance of 100, later revised up to 500.^[30] A COVID-safe plan was included in Gray’s evidence, demonstrating how the organisers would seek to minimise the risk of COVID-19 transmission and manage any transmission that might arise.

In her judgment, Adamson J considered the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). She also noted that there was no regulation of social distancing in Public Health Order No. 4, this being a recommendation only and therefore not giving rise to any risk of criminal liability.^[31] Her Honour went on to consider the exceptions included in Public Health Order No. 4 that allowed gatherings at community sporting venues and in casinos and football stadiums as relevant to balancing to her decision-making.^[32]

In terms of freedom of expression, Adamson J did not consider that social media was an adequate substitute for gathering in person, in part relying on the fact that Gray had gone to the trouble of organising the assembly which, Adamson J reasoned, would not have been necessary if social media had been an adequate replacement.^[33]

The changes that were apparent in Public Health Order No. 4, in which greater freedoms were permitted than in Public Health Order No. 3, were relevant to Adamson J’s decision. While the outbreak in Victoria was also relevant (at that point there were localised lockdowns in that jurisdiction), ultimately the evidence provided by NSW Chief Health Officer Dr Kerry Chant that the risk of transmission was low was considered to be persuasive. Justice Adamson refused to grant the orders sought by the Commissioner, finding that ‘the public interest in free speech and freedom of association outweigh [sic] the public health concerns’.^[34]

The Gibson protest

On 26 July 2020, the Supreme Court of NSW heard the matter of Commissioner of Police (NSW) v Gibson.^[35]

Public Health Order No. 4, as amended, remained in force at the time of this decision. On 22 July 2020, 16 new cases of COVID-19 had been recorded in NSW, with community transmission emerging.^[36] Nationally, the seven-day average of new infections was 345, with Victoria continuing to report the highest numbers of cases. The border between NSW and Victoria had closed on 8 July 2020.^[37]

Two main arguments were posited by Padraic Gibson in arguing that the Commissioner’s application for a prohibition order under s25 of the Summary Offences Act should not be granted. First, it was argued that the Court was required to exercise its power to issue a prohibition order in accordance with the implied freedom of political communication as outlined above. Justice Ierace considered that:

‘Assuming ... that s 25 of the Act does impose a burden on the implied freedom, the purpose of the law is legitimate, and is also suitable, in the sense that it is rationally connected to the purpose of allowing certain public assemblies to take place without sanction and prohibit[ing] others from taking place, on grounds that may include public order.’^[38]

Ultimately, however, Ierace J considered that the law was necessary and proportionate, and there was no viable alternative to achieving the purpose of the section. The Constitutional argument was therefore unsuccessful.

In terms of the risk of COVID-19 transmission, the risk was assessed by Dr Jeremy McAnulty, Executive Director of Health Protection for the NSW Department of Health, as having risen from ‘low’ to ‘medium’.^[39] On this basis, Ierace J was persuaded 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, at this particular phase of the pandemic, necessitates the granting of the order prohibiting the holding of the public assembly.’^[40]

More time was spent considering whether the prohibition order had been validly made. Prior to the conference between Gibson and the police, and to discussing Gibson’s application, evidence was provided that the Commissioner had made media statements indicating the assembly would be prohibited.^[41] While the prohibition decision was made by Acting Assistant Commissioner Stacey Maloney as a delegate of the Commissioner, Gibson argued that the Acting Assistant Commissioner could not have been free from the influence of the Commissioner’s statements to the media,^[42] her decision was infected with ‘apprehended bias’,^[43] and the decision was not adequately considered.^[44] Justice Ierace was not persuaded by any of these arguments, finding that the Acting Assistant Commissioner made an adequately considered decision independent of influence by the Commissioner.^[45]

Gibson’s appeal against this decision was dismissed.^[46] The protest proceeded and a number of participants were arrested or fined.^[47]

Other protests in NSW

Attempts by the Commissioner to prohibit protests on other topics were similarly successful, with only one other proposed assembly being permitted during 2020: see Commissioner of Police v Thomson [2020] NSWSC 1424, where it was acknowledged that Thomson’s planned protest included a highly detailed COVID-19 safety plan. Justice Cavanagh’s refusal to grant the prohibition order was also supported by the nature of the organisation planning the protest (a union), the limits on the number of attendees, and the way those attendees would be organised during the demonstration. The organiser was also the only protest organiser of this nature to present his own expert evidence, and this is likely to have supported the refusal to grant the prohibition order.^[48]

LITIGATION ON PROTESTS IN QUEENSLAND

There has been far less litigation in Queensland, likely due to the lower case numbers in that jurisdiction, combined with the different legislative regime (including the absence of the Public Health Orders). Queensland also has human rights legislation, which differs from the situation in NSW.

Specifically, the Human Rights Act 2019 (Qld) (Human Rights Act) protects the right to freedom of movement (s19) and freedom of expression (s21), the right of peaceful assembly (s22) and the right to take part in public life (s23). As seen below, however, the Queensland Supreme Court did not consider the existence of the Human Rights Act an impediment to prohibiting a protest.

Queensland protests

The Sri protest

On 8 August 2020, the Queensland Attorney General sought an order to block Jonathan Sri and others from demonstrating in Brisbane.^[49]

The most recently available data at the time, from 2 August 2020, indicated that one new case of COVID-19 had been recorded in Queensland on that day, in an individual who was in hotel quarantine after returning from abroad via NSW.^[50] Nationally, the Victorian situation had worsened significantly, with a seven-day average of 491 cases being reported daily in the week prior to 7 August 2020.^[51]

The proposed protest was to constitute a ‘sit-in’ on the Story Bridge of between 1,000 and 3,000 people, protesting in support of refugee rights.^[52] No application was made under the Peaceful Assembly Act 1992 (Qld) in relation to the protest, but this did not render their intended plans unlawful; it merely meant that they would not benefit from any immunity that might be available if the assembly were authorised under that Act.^[53]

Ultimately, Applegarth J considered the nature of the proposed assembly would give rise to unacceptable risks, both as a function of the nature of the assembly and in terms of the prevailing public health situation. Specifically, the proposal to occupy one of Brisbane’s main road thoroughfares was held to constitute an obvious ‘risk to life and limb’.^[54] The fact that the proposed assembly would impose ‘a significant burden upon the rights of other citizens and upon the public more generally’ by blocking a main road compounded concerns.^[55] As a result of this finding, Applegarth J did not think it necessary to consider whether there were any further grounds to prohibit the assembly under the Public Health Act 2005 (Qld), which at that point provided for a maximum of 100 people to gather publicly, although this was likely to offer an additional ground weighing strongly in favour of prohibition.^[56]

The Queensland Human Rights Commission offered two sets of submissions in relation to this matter, balancing the rights of the protesters to assemble and express their opinion against the rights of the population to go about their business and move freely around the city of Brisbane.^[57]

LITIGATION IN VICTORIA

Due to the different legislative regime in Victoria, the litigation that has emerged there has been focused on individuals rather than on protest organisers seeking judicial permission to hold their assemblies.

Victorian protests

The Cotterill protest

On 13 September 2020, during the Melbourne lockdown, Ms Cotterill was fined for breaching the stay-at-home orders. She argued that ‘at the time, she was both exercising (which was a permitted reason to leave the home) and demonstrating against the lockdown (which was not)’.^[58] She argued that the Directions under which she was fined were invalid as they ‘impermissibly burdened’ the constitutional freedom of political communication.^[59]

On the day she was fined, Victoria had recorded 473 new COVID-19 infections, all of which were locally acquired.^[60] Nationally the seven-day average was 54 per day, most of which were recorded in Victoria.^[61] The Victorian Minister for Health also declared a state of emergency on 16 March 2020 under s198 of the Public Health and Wellbeing Act 2008 (Vic) which extended until 6 November 2020.

Cotterill’s fine was withdrawn, but she continued the case to gain clarity in relation to the right to protest during the pandemic. Appeal Judge Niall agreed with the Victorian Government defendants that the freedom of political communication applies to legislation only, not to the regulations that are made under it.^[62] Ms Cotterill did not argue that the legislation under which the Directions were made infringed the implied freedom, so in practice her claim failed on a technicality.

Had she argued that the legislation infringed the implied freedom, however, it is likely she would have been unsuccessful in view of the NSW litigation discussed above.

The Gerner protest

Gerner lived in Melbourne, and owned a business that was affected by the Melbourne lockdown. He was unsuccessful in proceedings in the High Court of Australia to seek declarations that ss200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) infringed on an implied guarantee of freedom of movement in the Constitution.^[63] The High Court categorically rejected his arguments, referring to debates during the 1897 Sydney Convention in which an assurance was given that what became protections of free trade between jurisdictions would not remove the states’ “police powers” to “interfere with ... freedom of commerce and of human intercourse” for the purpose of “prohibiting both persons and animals, when labouring under contagious diseases ... entering their territory”.’^[64]

CONCLUSION

Courts are emphatic in their support for the right to protest, although in practice they have tended to favour limiting that right in favour of restrictions to protect public health. Attempts by protesters to develop new legal protections of protest rights have generally not been successful, suggesting this is not a period in which courts are inclined to stretch existing implied freedoms which may compromise governments’ public health strategies.

Anna Talbot is an academic teaching litigation and international law at the University of NSW and the University of Technology, Sydney. She previously worked as a solicitor and acted in protest litigation. Twitter: @annactalbot.

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^[1] UN Human Rights Office of the High Commissioner, International Covenant on Civil and Political Rights: Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49. Ratified by Australia in 1980.

^[2] Human Rights Committee, General Comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37, [14], [16].

^[3] Ibid, [14], [70]–[73].

^[4] Ibid, [40].

^[5] Ibid, [45] (see also [43]).

^[6] UN Human Rights Office of the High Commissioner, International Covenant on Economic, Social and Cultural Rights: Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27. Ratified by Australia in 1980.

^[7] See for example Commissioner of Police v Jackson [2015] NSWSC 96; Commissioner of Police v Allen (1984) 14 A Crim R 244; South Australia v Totani [2010] HCA 39; Melbourne Corporation v Barry (1922) 31 CLR 174; [1922] HCA 56; NSW Commissioner of Police v Bainbridge [2007] NSWSC 1015; Commissioner of Police v Rintoul [2003] NSWSC 662, as referenced in T Gotsis, Protests and the law in NSW, NSW Parliamentary Research Service Briefing Paper No 7, 2015, 6.

^[8] This is commonly referred to as the McCloy test – established in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 – referred to with approval in Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11, [5].

^[9] Summary Offences Act 1988 (NSW); Peaceful Assembly Act 1992 (Qld).

^[10] See for example Environmental Defenders Office, Protests, demonstrations, rallies and marches in the NT, 11 December 2019 <https://www.edo.org.au/publication/protests-demonstrations-rallies-and-marches/>; Public Order in Streets Act 1984 (WA). Local council requirements will be found in the relevant by-laws.

^[11] Public Health (COVID-19 Public Events) Order 2020, which came into force on 16 March 2020, banning public events where more than 500 people were in attendance.

^[12] [2020] NSWSC 867 (Gray).

^[13] Commissioner of Police v Bassi [2020] NSWSC 710 (Bassi), [2].

^[14] NSW Health, COVID-19 (Coronavirus) statistics, 5 June 2020 <https://www.health.nsw.gov.au/news/Pages/20200605_00.aspx>.

^[15] Australian Government Department of Health (Health),‘Coronavirus (COVID-19) at a glance – 5 June 2020’ <health.gov.au/resources/publications/coronavirus-covid-19-at-a-glance-5-june-2021>.

^[16] In line with the Summary Offences Act 1988 (NSW), s23(1)(f).

^[17] Bassi, above note 13, [30].

^[18] Ibid, [32]–[33].

^[19] Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109.

^[20] Commissioner of Police, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804 (Kumar).

^[21] Ibid, [13].

^[22] NSW Health, COVID-19 (Coronavirus) statistics, 18 June 2020 <https://www.health.nsw.gov.au/news/Pages/20200618_00.aspx>.

^[23] Health, ‘Coronavirus (COVID-19) at a glance – 18 June 2020’ <https://www.health.gov.au/resources/publications/coronavirus-covid-19-at-a-glance-18-june-2020>.

^[24] Kumar, above note 20, [19]–[20].

^[25] Ibid, [47], [48].

^[26] Ibid, [57].

^[27] As distinct from other concerns such as obstructing the public or causing a public disturbance. See Gray, above note 12, [46].

^[28] NSW Health, COVID-19 (Coronavirus) statistics, 2 July 2020 <https://www.health.nsw.gov.au/news/Pages/20200702_00.aspx>.

^[29] Health, ‘Coronavirus (COVID-19) at a glance – 2 July 2020’ <https://www.health.gov.au/resources/publications/coronavirus-covid-19-at-a-glance-2-july-2020>.

^[30] Gray, above note 12, [9].

^[31] Ibid, [28].

^[32] Gatherings in these locations are exempted from Public Health Order No. 4 under cl 17 and sch 1 respectively (see definitions in cl 2 for a definition of recreation facility (major), which includes sports stadiums).

^[33] Gray, above note 12, [59].

^[34] Ibid, [70].

^[35] [2020] NSWSC 953 (Gibson).

^[36] NSW Health, COVID-19 (Coronavirus) statistics 22 July 2020 <https://www.health.nsw.gov.au/news/Pages/20200722_00.aspx>.

^[37] NSW Government, Public Health (COVID-19 Border Control) Order 2020 (NSW).

^[38] Gibson, above note 35, [21].

^[39] Ibid, [73].

^[40] Ibid, [84].

^[41] Ibid, [32]–[34].

^[42] Ibid, [38].

^[43] Ibid, [44].

^[44] Ibid, [58].

^[45] Ibid, [43], [57], [59].

^[46] Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160.

^[47] J Dorsett and E Elsworthy, ‘Six protesters arrested at Sydney Black Lives Matter march’, ABC News (Media release, 28 July 2020) <https://www.abc.net.au/news/2020-07-28/sydney-black-lives-matter-protesters-detained/12498034>.

^[48] The unsuccessful cases were: Commissioner of Police (NSW) v Supple [2020] NSWSC 727; and Commissioner of Police v Holcombe (on behalf of Community Action for Rainbow Rights) [2020] NSWSC 1428.

^[49] Attorney-General for the State of Queensland v Sri & Ors [2020] QSC 246 (Sri).

^[50] Queensland Health, Queensland novel coronavirus (COVID-19) update, 2 August 2020 <https://www.health.qld.gov.au/news-events/doh-media-releases/releases/queensland-novel-coronavirus-covid-19-update-2020-08-02>.

^[51] Health, ‘Coronavirus (COVID-19) at a glance – 7 August 2020’ <https://www.health.gov.au/resources/publications/coronavirus-covid-19-at-a-glance-7-august-2020>.

^[52] Sri, above note 49, [9].

^[53] Ibid, [25].

^[54] Ibid, [33].

^[55] Ibid, [36].

^[56] Ibid, [37], [40], [42].

^[57] Queensland Human Rights Commission (QHRC), ‘Outline of Submissions for the Queensland Human Rights Commission (Intervening)’, Submission in Attorney-General (Qld) v McKinnon & Ors (8 August 2020) <https://www.qhrc.qld.gov.au/__data/assets/pdf_file/0015/28050/2020.08.08-AG-v-McKinnon-QHRC-Submissions.pdf>; QHRC, ‘Outline of Submissions for the Queensland Human Rights Commission (Intervening)’ Submission in Attorney-General (Qld) v McKinnon & Ors (12 August 2020) <https://www.qhrc.qld.gov.au/__data/assets/pdf_file/0016/28051/2020.08.12-QHRC-Further-Submissions.pdf>.

^[58] Cotterill v Romanes [2021] VSC 498 (Cotterill), [7].

^[59] Ibid.

^[60] Victoria State Government Health and Human Services, Coronavirus update for Victoria – 13 September 2020 <https://www.dhhs.vic.gov.au/coronavirus-update-victoria-13-september-2021>.

^[61] Health, ‘Coronavirus (COVID-19) at a glance – 13 September 2020’ <https://www.health.gov.au/resources/publications/coronavirus-covid-19-at-a-glance-13-september-2020>.

^[62] Cotterill, above note 58, [9].

^[63] Gerner & Anor v State of Victoria [2020] HCA 48, [4].

^[64] Ibid, [31].