News & Current Affairs

By Caitlin Holloway


Freedom of political communication vs a health crisis: weighing up matters of public interest

The tragic death of George Floyd in custody in the United States has sparked widespread protests throughout the world. The protests, in support of the Black Lives Matter movement, have come at a time when the world is dealing with the COVID-19 pandemic related restrictions, including social distancing and restrictions on public gatherings.

The timing of the protests has sparked debate about whether allowing the protests to take place is contrary to public interest, having regard to the potential of spreading COVID-19.

These debates have involved weighing up the importance of social distancing measures in easing the spread of COVID-19 with the importance of “freedom of speech”.

It is a common misconception that Australians have a broad “freedom of speech”. The Australian constitution, unlike the United States, does not explicitly protect freedom of speech. That being said, the High Court has held that there exists an implied freedom of political communication exists in Australia (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; The Australian Capital Television v the Commonwealth (1992) 177 CLR 106).

The extent of that freedom is often debated in Australia, with a recent example being the termination of Israel Folou by Rugby Australia. Despite continuing debate about how far the freedom of political communication extends in Australia, the courts and legislature have declined to clarify its scope.

The importance of weighing up important and competing public interests has recently been considered in response to the planned black lives matter rally in Sydney on 6 June 2020 in the decision of the NSW Court of Appeal in Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, which held that the rally was lawful, despite the restrictions.

The decision followed a withdrawal of support for the protest by police, after the NSW Supreme Court refused to make a declaration that the rally was an authorised public assembly within the meaning of the Summary Offences Act 1988 (NSW).

The rally had been organised by the Appellant, Mr Bassi, in response to the death of Mr Floyd in the United States, as well as in furtherance of the Black Lives Matter movement in Australia, and in particular, the death of an indigenous Australian, Mr David Dungay in Long Bay Jail in 2015.

The procedure for holding an authorised public assembly in New South Wales is governed by Part 4 of the Summary Offences Act 1988 (NSW) (the Act). If a public assembly secures the status of an “authorised public assembly” under the Act, a person who participates in the assembly will not be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place, provided that the relevant assembly is conducted substantially in accordance with the details provided to police.

The Act requires the organising party to provide a “Notice of Intention” to hold a public assembly, which includes information with respect to the number of persons who are expected to participate in the assembly.

Mr Bassi provided police with a Notice of Intention on 29 May 2020, proposing that 50 people were to assembly at Sydney Town Hall to support the Black Lives Matter movement. In the week leading up to the proposed event, there was increased public support for the assembly, generated through Mr Bassi’s social media channels. Accordingly, Mr Bassi notified police that he expected more than 50 people to attend assembly.

Subsequently, the Commissioner of Police commenced proceedings against Mr Bassi, seeking an order that the NSW Supreme Court prohibit the holding of the public assembly, pursuant to section 25 of the Act. Mr Bassi sought a declaration that the proposed assembly was authorised.

His Honour Fagan J held that, because the size of the assembly had increased significantly, Mr Bassi had not complied with the requirement that he give notice of his intention to hold a public assembly. On that basis, His Honour declined to make a declaration that the proposed assembly was lawful.

The NSW Court of Appeal disagreed with His Honour’s decision, finding that Mr Bassi had provided the required notice under the Act and that His Honour should have made the declaration sought by Mr Bassi.

Although the facts of the matter potentially engaged significant consideration of the competing public interest of easing the spread of COVID-19 and engaging in the freedom of political communication the issues before the Court of Appeal were narrow, relating solely to the operation of provisions of the Act.

The decision of the Court of Appeal did not turn on weighing up those competing public interests so the extent of the freedom of political communication in Australia remains unclear.

The NSW government, in an apparent effort to undermine the Court’s ruling, has since condemned the protests, stating future protests larger than 10 people will be illegal if they do not comply with the restrictions imposed in response to COVID-19.