FEATURE ARTICLE -
Advocacy, Issue 102: December 2025
In Commissioner of Police v Naser [2025] NSWCA 224 (9 October 2025) the NSW Court of Appeal (Bell CJ, Harrison CJ at CL and Free JA) ordered, pursuant to s 25 of the Summary Offences Act 1988 (NSW), that the holding of a public assembly – advocating for the humanitarian crisis in Gaza in the Middle East – ought be refused. The court – by reference to ‘a public safety risk to participants and other members of the public’, having regard to the location of the proposed assembly in the area of the Sydney Opera House and subsequent crowd disbursement – was refused:
[1] The Summary Offences Act 1988 (NSW) (the Act) provides, in Part 4, a regime which seeks to regulate public assemblies. A public assembly is defined in s 22 to mean “an assembly held in a public place” and includes “a procession so held”. “Public place” means a “public road, public reserve or other place which the public are entitled to use”.
[2] The regime encourages early notification of proposed assemblies to the Commissioner of Police (the Commissioner) by prescribed notice (known as a Form 1 Notice) setting out the date of the proposed public assembly and, if the proposed public assembly is a procession, a statement specifying the time and proposed route of the procession, the purpose for which the proposed public assembly is to be held and the number of persons expected to be participants in the proposed public assembly and procession.
[3] In certain circumstances, a public assembly proposed in a notice of this kind may become an “authorised public assembly”. This depends on the application of s 23 of the Act. Putting aside the requirements going to the content of the notice in s 23(1)(a)-(e), the classification of a proposed public assembly as an “authorised public assembly” depends on the response of the Commissioner or a Court. There are three possibilities. One is that the Commissioner has notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly: s 23(1)(f). Another is that the notice was served on the Commissioner at least seven days before the date of the proposed public assembly and the holding of the public assembly is “not prohibited by a Court under s 25(1)”: s 23(1)(f)(i). The third is that the notice was served on the Commissioner less than seven days before the date of the proposed public assembly and the holding of the public assembly is authorised by a Court under s 26.
[4] The significance of a public assembly being an “authorised public assembly” is the conferral of a statutory immunity under s 24. If an authorised public assembly is held substantially in accordance with the particulars furnished in the notice given to the Commissioner (or in accordance with amended particulars as agreed between the Commissioner and the organiser, together with any prescribed requirements), a person is not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, “guilty of any offence relating to participating in any unlawful assembly or the obstruction of any person, vehicle or vessel in a public place”.
[5] Service of a Form 1 Notice on the Commissioner therefore gives the Commissioner an opportunity to assess and decide whether he or she does or does not oppose the holding of the public assembly. If the Commissioner, having received the notice seven days or more before the date of the proposed assembly, does oppose the holding of the proposed public assembly, provided that he or she has engaged with its organisers by way of conferral and has taken into consideration any matters or representations made by the organiser(s), the Commissioner is empowered by s 25(1) of the Act to apply to this Court for an order prohibiting the holding of the public assembly. One feature of the statutory scheme to be noted is that the Commissioner is not authorised to apply to the Court for such an order if the Form 1 Notice was served fewer than seven days before the date of the proposed assembly. Where an application is made under s 25(1) the onus lies upon the Commissioner to convince the Court that the proposed assembly should be prohibited: Raul Bassi v Cmr of Police (NSW) [2020] NSWCA 109; (2020) 283 A Crim R 186 at [17(vi)] (Bassi).
[6] Section 25 of the Act is also the source of this Court’s power to prohibit the holding of a public assembly. Powers conferring jurisdiction on a Court should be interpreted liberally and not as subject to implications or limitations which are not found in the express words: Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36; Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 at [35]; Ramsay v Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWCA 299 at [55]; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283 –284 , 290; [1988] HCA 13; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185 , 202 –203 , 205; [1992] HCA 28.
[7] A significant issue between the parties was the effect of an order made under s 25. The form of the order follows from the terms of s 25(1) – it is an order “prohibiting the holding of a public assembly”. On its face the effect of an order of this kind is clear. The defendants submitted that notwithstanding the ordinary connotations of an order “prohibiting” something from occurring, the legal effect of an order under s 25(1) is more modest. Its effect was said to be confined to depriving the proposed public assembly of the status of being an “authorised public assembly”. There is no doubt that this is at least part of the effect of an order under s 25(1). So much follows from the application of s 23(1)((f)(i). As explained above, if notice of an assembly has been served at least seven days before the proposed assembly and the holding of the public assembly is “not prohibited” by a Court under s 25(1) the assembly will be an “authorised public assembly”. An order prohibiting the public assembly therefore precludes the application of the immunity provision in s 24 from the assembly in question.
[8] The controversy between the parties is whether that is the only legal consequence of an order prohibiting the holding of a public assembly. The language chosen by the legislature points strongly to the conclusion that an order made under s 25(1) does exactly what the wording of the order suggests, namely it prohibits in a more general way the conduct of holding the proposed public assembly. If the legislature had intended to confine the consequences of an order under s 25(1) to precluding the assembly from qualifying as an “authorised public assembly”, it would have been expected to use language other than “prohibit”. For example, it would have been sufficient and clear to provide that the Commissioner may apply for an order that the proposed public assembly is unauthorised or not authorised.
[9] Ms Graham, who appeared for the first to third defendants, submitted that a breach of a s 25 prohibition order would not lead to a contempt of court, and finding that it did would be inconsistent with Simpson J’s decision in Commissioner of Police v Rintoul [2003] NSWSC 662 (Rintoul). This necessarily involved a submission that a prohibition order does not mean what it says. The following exchange occurred in the course of final address:
BELL CJ: Why wouldn’t the organisers be in contempt if they continue to organise on the face of a prohibition order after the time and expense has been spent on a hearing of this kind?
GRAHAM: It depends on what the effect of the order actually is, because if all the order does is remove the authorisation status, then there’s no order to breach by engaging in the conduct.
BELL CJ: So the order doesn’t mean what it says? An order that this Supreme Court of New South Wales prohibits the holding of a public assembly, that an order expressed in the terms of the statute doesn’t mean what it says?
GRAHAM: That’s right.
[10] Ms Graham’s submission should be rejected.
[11] Where an order is made pursuant to s 25, breach of that order may render a person in contempt of court: Commissioner of Police v Allen (1984) 14 A Crim R 244 at 245 (Allen); New South Wales Commissioner of Police v Bainbridge (2007) 175 A Crim R 226; [2007] NSWSC 1015 at [17] (Bainbridge); see also more generally Australian Competition and Consumer Commission v Hughes [2001] FCA 38 at [15], quoted with approval in Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655 at [20]; see also Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 at [60] , [75] , [116]. This may extend, in certain circumstances, to persons who were not parties to the proceedings in which the order was made: see Zhu v Treasurer (NSW) (2004) 218 CLR 530; [2004] HCA 56 at [121]; Street v Hearne (2007) 70 NSWLR 231; [2007] NSWCA 113 at [149]; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [46]; Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis, 5th ed, 2015) at 786 [21–490] fn 808.
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Overview of arguments and evidence
[37] The Act does not specify the criteria by reference to which prohibition orders may be made pursuant to s 25. The jurisprudence which has developed in the application of this Act establishes that the Court must weigh the important democratic right of free speech and public assembly against competing public policy considerations. Competing public policy considerations may include rights to privacy (Rintoul) and preservation of property, considerations of public health or public order (Bassi;Padraic Gibson (on behalf of Dungay family) v Cmr of Police (NSW Police Force) [2020] NSWCA 160), and considerations of public safety (NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5).
[38] In the present case, the Commissioner’s opposition to the proposed procession is principally based upon public safety considerations. Those safety considerations in turn are a function of the anticipated number of participants, the nature of the route and the proposed destination of the procession.
[39] While the defendants took issue with the proposition that the public assembly in this case will involve unacceptable safety risks, they did not seek to argue that public safety is an irrelevant consideration when it comes to the exercise of the Court’s power under s 25 of the Act.
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Determination
[61] The Court approaches the application on the basis that allowing and facilitating political expression in the form of public assemblies is a matter of fundamental importance and public interest. As noted above, the Court also proceeds on the basis that the proposed public assembly that is the subject of the present application involves organisers and likely participants with deeply and sincerely held views about a matter of undeniable significance and humanitarian concern. There is also an established pattern of orderly public assemblies reflecting goodwill and cooperation between the organisers, participants and NSW Police. These are all powerful considerations weighing against the Commissioner’s application. But they are not absolutes. The regime in Part 4 of the Act, including the power conferred on the Court to prohibit certain proposed public assemblies, reflects the need to balance countervailing considerations.
[62] The Court is unanimously of the view that, in view of the likely numbers estimated by the first defendant to participate in the procession and public assembly and given the route and in particular the proposed destination of the Procession and its capacity and physical constraints, the public safety risk to participants and other members of the public is extreme. The extremity of that risk is only magnified if the first defendant’s estimate of participation levels is exceeded. The degree to which the estimate was exceeded on the Sydney Harbour Bridge march has already been noted. On the estimates of the police, the number of participants was twice the number anticipated as being likely to attend. On the first defendant’s estimate, it was six times the number of anticipated attendees. There is a real risk that the current estimate of 40,000 will be exceeded, particularly having regard to the timing of the march, on approximately the second anniversary of the bombing of Gaza, the iconic nature of the proposed destination of the procession and the heightened attention that will inevitably be given to the proposed procession by these proceedings.
[63] A matter of particular concern to the Court is the prospect that participants in the procession will not disperse from the Opera House forecourt and move away to other places in an orderly, efficient and predictable way. The defendants in seeking to address the safety concerns raised by the Commissioner sought to emphasise that the organisers of the procession are planning for the procession to come to an end at the Opera House forecourt, such that participants can be expected to leave the forecourt soon after arrival.
[64] The Court finds that this is an unrealistic assumption, with potentially grave consequences when it comes to the safety of march participants and other members of the public. The promotional material being used by the organisers of the procession has emphasised the Opera House as a focal point of the event. The evidence and submissions relied on by the defendants have likewise emphasised the iconic significance of the Opera House as a matter that is critical to understanding the political gravity of the event.
[65] Given that context, there is a high risk, if not a probability, that substantial numbers of participants in the procession will be strongly disposed against an immediate dispersal from the site. Instead they will stay on the Opera House forecourt for a prolonged period before leaving. If that occurs, there is likely to be a serious problem with a backlog of march participants arriving at the forecourt and wanting to enter. There will not be an orderly staggering of sections of the crowd through the forecourt in controlled quantities, as the defendants submitted. Instead the crowd of march participants who would be understandably eager to enter the forecourt is likely to grow (and grow in frustration) which in turn will increase the risk that the areas surrounding the forecourt will become blocked with people, including potential points of egress to the west towards Circular Quay. That will only exacerbate the pressure on narrow points of egress in one corner of the forecourt. It will also exacerbate the risk of the crowd being turned back on itself, a scenario which Assistant Commissioner McKenna cogently described as highly undesirable.
[66] There is, more generally, the risk of crowd crush. This risk will be heightened if the Trust carries out inspections of all persons entering the forecourt as it is entitled to do and is its standard protocol for mass events. This will be likely to have a significant slowing effect on those being funnelled into the forecourt via Macquarie Street. That funnel will be narrow, especially if an emergency lane is able to be preserved without being swamped by participants in the procession. If the Trust did not follow its protocol and carry out inspections, the risk of bad actors infiltrating the march and bringing items such as flares to the forecourt, as has happened in the past, will increase significantly.
[67] The defendants properly accepted that there were risks associated with the proposed public assembly, but submitted that this is true of any large gathering and that the risks in the present case were acceptable. To some extent the defendants appeared to urge the Court to find that the significance of the political cause, and the urgency of the political moment from the perspective of those participating in the assembly, are considerations that are so compelling that the Court ought to decline to prohibit the assembly from being held, even if there are safety concerns that might otherwise be regarded as unacceptable. It is unnecessary to say whether reasoning of that kind might ever be thought persuasive under the statutory scheme. It is sufficient to say that on the facts of this case the risks to public safety associated with the public assembly are so significant that it would be irresponsible to allow the public assembly to proceed, irrespective of the political significance of the event.
[68] The Court is also not persuaded by the defendants’ submission that there are sufficient mitigatory factors present to address the perceived safety risks. The defendants emphasised in this regard the history of cooperation between PAG organisers, the police and participants in PAG assemblies, the demonstrated capacity of PAG marshalls to assist police in maintaining order and control over assembly participants, the goodwill with which participants in PAG assemblies have acted and would be expected to act and the powers available to police, including as authorised officers under the 2021 By-law, to take appropriate actions if and when necessary in the course of the assembly.
[69] The Court accepts that there is a reasonable evidentiary and logical foundation for each of these propositions, and that they would serve as mitigating factors in relation to the risks posed by the assembly. But it is a significant overstatement to say that these factors will in combination serve to reduce the risk to public safety to an acceptable level.
[70] While PAG organisers and marshalls have experience in dealing with a number of public assemblies, including regularly in Hyde Park, there is no evidence that they have managed an assembly with anything analogous to the logistical challenges and risks associated with a large scale march from Hyde Park culminating at the Opera House forecourt with all of its physical constraints. It is the exceptional risks associated with the particular route and ultimate destination of the procession, considered in the context of the likely size of the crowd and its potential movement, that give rise to the Commissioner’s application and the Court’s conclusions as to the unacceptable nature of those risks.
[71] As to the powers of NSW Police to respond to problems as and when they emerge, again that would be a mitigating factor but the Court was not given any basis in the evidence to conclude that this would be an effective answer to the practical problems that may well be faced by the organisers and the police in managing a large crowd in the particular physical environment of the Opera House precinct and surrounds, even assuming that adequate resources could be summoned and deployed in the very short period of time between now and the proposed assembly and procession.
[72] In reaching our conclusion, we have also taken into account the paucity of information from organisers as to specific measures to be taken to control the estimated crowds other than confident assertions that there will be at least 100 marshalls who have co-operated successfully with police in respect of past protests, including that which recently occurred on the Sydney Harbour Bridge. It was accepted that the organisers of the planned procession have not engaged in any discussions with either the Trust or the RBGD Trust.
[73] The first to third defendants emphasised in submissions that they have dealt with NSW Police, who are the appropriate conduit for communications about the organisation of the march. The defendants also emphasised that in circumstances where the Commissioner bears the onus in bringing an application under s 25, it ought not tell against the defendants that they have not engaged with the Trust or the RBGD Trust. These submissions do not allay the Court’s concerns about the lack of such engagement, and what that entails for the overall assessment of the evidence.
[74] In circumstances where the defendants were aware of the concerns of NSW Police about the acute logistical challenges of the Opera House environment and the problems associated with relying on egress into the Royal Botanic Gardens (and where those challenges are reasonably obvious given the anticipated number of participants and the nature of the ultimate destination), it was incumbent on the organisers of the proposed assembly, in answer to the Commissioner’s concerns supported by detailed evidence, to give a cogent account of how the event would practically play out, including on critical questions about site capacity, regulation of access and appropriate points of ingress and egress, and provision for emergencies, including access of emergency vehicles. Because of the identified difficulties with the site, that necessarily required an understanding of the arrangements that would be in place with the Trust and the RBGD Trust. The absence of consultation in this regard reinforces the conclusion that there are significant risk factors and the Court has no proper basis to be satisfied that they have been addressed and will be capable of effective management. It is not a question of hoping for the best or hoping that things don’t go wrong.
[75] The Court’s assessment, based upon the evidence led by the Commissioner including that given by Assistant Commissioner McKenna under cross examination, is that the proposed public assembly will involve a significant and unacceptable risk to public safety. There are obvious reasons why, consistent with the Commissioner’s evidence, mass events at physically constrained venues require extensive and detailed planning including close consultation between stakeholders, often extending over many months. In the face of credible assessments of real safety concerns and risks, optimistically asserting that, without such planning but with goodwill and cooperation, a procession and assembly of the magnitude and complexity proposed is capable of being safely conducted is not sufficient.
[76] An additional consideration that reinforces our conclusion is the substantial impact and financial burden that would fall on the Trust, its patrons and performers scheduled to be involved in events that would need to be cancelled if the procession were to go ahead. These adverse impacts would not on their own justify the making of a prohibition order, and we are mindful that inconvenience and disruption to others will not ordinarily be sufficient to justify prohibiting others from engaging in important acts of political assembly and communication. But nor should it be overlooked that the proposed procession in this particular case would have significant adverse impacts on a number of people which go beyond merely trivial inconvenience.
[77] We are comfortably satisfied that an order should be made pursuant to s 25 of the Act, in the terms sought by the Commissioner, prohibiting the holding of the proposed public assembly.
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(emphasis added)
A link to the full decision is here.
