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.
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.
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.