Court of Appeal declares Black Lives Matter protest is an “authorised public assembly”

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Statement from Peter O’Brien, solicitor

Court of Appeal declares Black Lives Matter protest is an “authorised public assembly”

The New South Wales Court of Appeal has heard an urgent appeal today from the organiser Mr Raul Bassi on behalf of the Vigil for George Floyd and David Dungay. Barristers Mr Stephen Lawrence and Ms Felicity Graham of Black Chambers appeared for the appellant, instructed by Peter O’Brien of O’Brien Criminal and Civil Solicitors. Mr Michael Spartalis appeared for the Commissioner of Police.

The Court of Appeal, constituted by Chief Justice Bathurst, Justice Bell, President of the Court of Appeal and Justice Leeming, heard argument in relation to the nature of the notice of intention given under s 23 of the Summary Offences Act 1988 (NSW) and agreed amendments made pursuant to s 24 of the Summary Offences Act 1988 (NSW).

Section 24 of the Summary Offences Act 1988 (NSW) provides certain immunities from criminal liability to persons who participate in a public assembly. The section is as follows:

24   Participation in authorised public assembly

If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of any thing 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 an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

The evidence before the Court included that the police and Mr Bassi had agreed in the days leading up to today’s planned protest to amend particulars to the notice of intention to allow for the original small vigil planned outside Department of Corrective Services in Lee Street of approximately 50 people to be expanded to an assembly of approximately 5000 persons at Town Hall with a cultural ceremony, speeches and a process through the city to Belmore Park where further speeches and a vigil are to be held. The Court of Appeal will give its reasons next week for ruling that the assembly is an “authorised public assembly”, which will give rise to the immunities.

The Court allowed the appeal brought by Mr Bassi and declared that the assembly to be held this afternoon in accordance with Mr Bassi’s amended notice is an “authorised public assembly”.

This decision will, in the opinion of lawyers, constitute a “reasonable excuse” for the purposes of the public health directions issued by the Minister for Health which would otherwise prohibit gatherings in public places of more than 10 people.

Peter O'Brien

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