The NSW Laws Relating to Unlawful Assemblies

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By Paul Gregoire and Ugur Nedim

The huge Sydney anti-lockdown rally on 24 July was classed as an unlawful assembly. The NSW Police Force had rejected an application to hold the march, which contravened stay-at-home orders designed to stop the spread of the COVID-19 Delta variant.

At the time of the demonstration, Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 was in force, as it continues to be today. And it provides that “a person must not participate in an outdoor public gathering in Greater Sydney of more than 2 persons”.

When a public health emergency occurs – such as the COVID-19 pandemic – emergency powers contained within section 7 of the Public Health Act 2010 (NSW) are triggered, which permit the NSW health minister to issue public health orders without parliamentary oversight.

Section 10 of the Public Health Act makes it an offence not to comply with a public health order, with penalties of up to 6 months imprisonment and/or an $11,000 fine applying. While section 118 provides that police can issue penalty notices for not complying with public health restrictions.

But while the anti-lockdown protesters were for the most part dealt with under these emergency provisions, there are regular statutory laws in this state that govern public assemblies, and these measures that were passed by parliament continue to apply regardless.

The offence of unlawful assembly

Section 545C of the Crimes Act 1900 (NSW) makes it a crime to knowingly join or continue to participate in an unlawful assembly. If convicted of this offence, a person can be imprisoned for up to 6 months and/or fined $550.

The second clause in section 545C outlines that anyone convicted of unlawful assembly whilst armed with any weapon, a loaded arm, “or with anything which used as a weapon of offence is likely to cause death or grievous bodily harm” is liable to up to 12 months in prison and/or a $1,100 fine.

While the third clause sets out that any public assembly of five or more persons with the common objective of compelling anyone “by means of intimidation or injury” to do what they’re “not legally bound to do” or “abstain from doing what the person is legally entitled to do” is deemed unlawful.

Lawful assemblies

The Summary Offences Act 1988 (NSW) (the Act) is the NSW legislation that contains local summary offences, which are crimes that are considered minor and can therefore be dealt with in a summary manner, meaning before a magistrate in the NSW Local Court.

Part 4 of the Act contains the laws governing public assemblies, including how a protest organiser is able to have their demonstration considered a legal public assembly.

Section 22 of the Act defines a public assembly as “an assembly held in a public place, and includes a procession so held”.

For a public assembly to be authorised, section 23 stipulates that written notice addressed to the NSW police commissioner must be submitted beforehand. And the documentation has to provide the details of the protest or event, along with the expected number of participants.

Commonly known as a Form 1, the Notice of Intention to Hold a Public Assembly is the document that needs to be provided to police and it outlines the necessary details.

The notice should be submitted at least seven days before a scheduled assembly, and if no opposition is voiced by the commissioner, then it is legal.

If these procedures are followed correctly, then section 24 of the Act provides that participants in an approved public assembly cannot be found guilty of the offence of taking part in an unlawful assembly.

Prohibiting assemblies

The massive Sydney Black Lives Matter rally that took place on 6 June last year occurred just weeks after the initial NSW lockdown had been lifted.

Rally organisers had notified their intention to hold the event prior to the required seven days timeframe, and they outlined that around 50 people would gather at the public square on Lee Street close to Central Station.

Over the following days, the expected number of people indicating on Facebook that they were likely to participate in the action swelled to 5,000. So, two days prior to the event, an organiser met with police to arrange another location, specifically Sydney Town Hall.

However, on the day before to the scheduled rally, NSW police commissioner Mick Fuller sought an order from the NSW Supreme Court to make it illegal, citing public health concerns due to the pandemic.

Section 25 of the Act permits the state police commissioner to apply to the court for “an order prohibiting the holding of a public assembly” even if event organisers have submitted their form in the required manner.

On 5 June 2020, Justice Fagan found that the commissioner hadn’t agreed to the BLM rally in the new location, as the change of locality required a new notice of intention to be lodged with the usual seven day timeframe, so therefore it couldn’t go ahead.

However, a last minute appeal on the day of the event saw the NSW Court of Appeal rule that the amended notice of intention was the same application that had been lodged in the required manner. So, the protest could legally go ahead.

The lockdown continues

To prevent another anti-lockdown protest similar to 24 July Freedom March taking place in Sydney city the weekend following, NSW police deployed a sizable amount of officers to the CBD, and effectively turned it into a no-go zone during daylight hours.

A union-led car convoy demonstration organised to take place in the city that Sunday was also deemed an unlawful assembly and those turning up to the event were fined and ordered to return to their residences.

Prime minister Scott Morrison condemned the 24 July protesters in Sydney, but upheld the right of those in other jurisdictions around the country who weren’t in lockdown to assembly at similar public assemblies to protest pandemic restrictions.

The Sydney lockdown is currently in its seventh week. Australian Defence Force troops have been deployed to western Sydney to maintain pandemic restriction compliance. And the anti-lockdown protesters have vowed to return to the streets at a later date.

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  1. Penny Martin

    As a human being living in a democracy may I ask where are my rights to protest?

    When is this all going to stop?

    Thank you

  2. Hey Penny

    Hey Penny,

    Happy to help with you’re questions.

    Firstly, you are not living in a democracy. You are living in a system of deception which presents to us the illusion of democracy, as if we actually have a say in who runs out country, and as if having 50.1% of a vote and 49.9% who despise you somehow represents a system that we should all aspire to be a part of,

    Secondly, you do not have rights (not so long as you validate government with your thoughts and actions) They are illegitimate and have implemented systems – before you were born – which effectively see you born into servitude and owned by the state. Educate yourself on our legal system, the different jurisdictions, public v private, rules of equity, common law and statutory legislation.

    This is the only way to navigate through what’s coming as regarding your last question: this does not stop. Anybody who is 18 months into this overt display of tyranny and yet still harbours desires and beliefs of things returning to normal and governments taking their foot off the pedal is simply living in denial.

    Our governments are corporate puppets who bow to their handlers without question. It does not matter who is voted in, they will be a heavily vetted member of the club and they will do the bidding of their masters just as those who are in now are doing.

    With that being true, why would getting together in large numbers and begging for mercy from them ever have any effect? That’s what protesting is. You even have to seek permission to do it in the first place.

    Cut them out of your life. Let them have their world of fiction. Take your power back, that which was granted to you as a woman, a creator. Good luck.

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