Protest Before and During a Pandemic

AuthorJeffrey Gordon
Published date01 December 2022
Date01 December 2022
Subject MatterARTICLES
Federal Law Review
2022, Vol. 50(4) 421448
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/0067205X221126557‌lr
Protest Before and During a
Jeffrey Gordon*
Liberal democracies have struggled recently with protecting freedom of speech and assembly during
the COVID-19 pandemic. This is an old, general problem in new, specif‌ic guise. In Australia, the
Supreme Court of New South Wales has been exercising a statutory jurisdiction to authoriseor
prohibitproposed public assemblies for 40 years. This article offers the f‌irst sustained analysis of
the Courts jurisprudence. After describing the operation of the statutory permit scheme and
systematising the case law, this article critiques the Courts jurisprudence from the perspective of
free speech and freedom of assembly. It then argues that there is a puzzle at the heart of the
legislative scheme: the conferral of a wide discretion the exercise of which produces a narrow legal
order. This puzzle suggests that the legal effect of an authorising or prohibiting order does not
exhaust its broader social signif‌icance.
Received 14 July 2021
I Introduction
When people seek to gather to express their views, authorities in liberal democracies ordinarily ask:
How should the freedoms of speech and assembly be balanced against other public interests?
Australia, as elsewhere, this question became urgent for governments in 2020. The COVID-19
pandemic brought some of the broadest and deepest restrictions on liberty, including on free speech
and freedom of assembly, since Western occupation. But other critical issues demanded public
ventilation. For example, Black Lives Matter (BLM) advocates, electrif‌ied by recent tragedies,
*Lecturer, Sydney Law School. I am grateful, with the standard disclaimer, to Simon Bronitt, Ben Chen, Andrew Edgar, Peter
Gerangelos, Bradley Gooding, Alexandra Grey, Emily Hammond, Carolyn McKay, Simon Rice, Rayner Thwaites, Anne
Twomey, Kevin Walton, the two anonymous referees, and participants in three events hosted by Sydney Law School: The
Julius Stone Institute of Jurisprudence Seminar in November 2020, the ECA Workshop in May 2021, and the ECA Symposium
in Law and Justice in July 2021.
1. Balancing may or may not be an appropriate methodology, but authorities do describe the regulatory task as striking a
balance: Commissioner of Police v Allen (1984) 14 A Crim R 244, 251 (Allen). See also Simon Bronitt and George
Williams, Political Freedom as an Outlaw: Republican Theory and Political Protest(1996) 18(2) Adelaide Law Review
289, 2945; Tim Legrand and Simon Bronitt, Policing the G20 Protests: Too Much Order With Too Little Law
Revisited(2015) 22(1) Queensland Review 3, 11.
organised demonstrations both in solidarity with protesters in the United States and to raise
awareness of Black deaths in custody in Australia. Debate continues over the wisdom and legality of
in-person protests during the pandemic.
For 40 years, the New South Wales Supreme Court has been empowered to authoriseor
prohibita proposed public assembly under a statutory permit scheme. In that time, the Court has
authorisedor prohibitedproposed assemblies canvassing a vast range of topics, including
racism, sexual violence, refugee rights, immigration policy, the environment, the wars in Iraq and
Afghanistan and lock outlaws limiting night-time trading. A curious feature of the permit scheme,
which was f‌irst enacted in 1979
and has not been substantively amended,
is that the Court
exercises a wide discretion: an assembly will be authorised(or prohibited) if free speech and
freedom of assembly outweigh (or are outweighed by) other public interests.
Its surprising to
discover that an Australian court has been grappling with such a large discretion, expressly bal-
ancing fundamental rights, for four decades.
The discretion that the Court exercises to authoriseor prohibita proposed public assembly is a
forward-looking, licensing discretion unaccompanied by statutory criteria. It trades organisersand
participantsfundamental rights to speech and assembly against a broad range of other public
interests. This regulatory discretion is different from a courts typical discretionary application of the
criminal law. The usual criminal-law discretion exercised when deciding, say, whether evidence
establishes beyond reasonable doubt that a defendant used offensive languagein a public place
without reasonable excuse
is an ex-post, forensic analysis of the defendants conduct, as re-
vealed by admissible evidence, to determine whether the elements of the offence are satisf‌ied.
2. Public Assemblies Act 1979 (NSW).
3. Summary Offences Act 1988 (NSW) pt 4. The Public Assemblies Act 1979 (NSW) met with some criticism: Robin
Handley,‘“Serious Affrontand the NSW Public Assemblies Legislation(1986) 10(5) Criminal Law Journal 287. But in
1988 the government regarded the permit scheme as having operated successfully for the past nine years: New South
Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988, 807 (John Dowd, Attorney-General); New South
Wales, Parliamentary Debates, Legislative Council, 2 June 1988, 1339 (Ted Pickering, Minister for Police and
Emergency Services). In 1991, the Queensland Electoral and Administrative Review Commission agreedthat the permit
system in New South Wales worked well: Queensland Electoral and Administrative Review Commission, Review of
Public Assembly Law (Report, February 1991) 52 [5.52], 54 [5.65], 65 [6.73], 74 [7.33], 95 [8.27] (Review of Public
Assembly Law). For a more recent sanguine view, see Roger Douglas, Dealing with Demonstrations: The Law of Public
Protest and its Enforcement (Federation Press, 2004) 68. For some critical perspectives,see Daniel Meyerowitz-Katz and
Benjamin Brady, Protest Prohibited: Commissioner of Police v Keep Sydney Open(March 2017) LSJ: Law Society of
NSW Journal 90; Human Rights Law Centre, Say it Loud: Protecting Protest in Australia (Report, December 2018) 15.
4. Allen (n 1) 251.
5. Summary Offences Act 1988 (NSW) s 4A.
422 Federal Law Review 50(4)

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