Commissioner of Police (NSW Police Force) v Joshua Lees [2025] NSWSC 858 (2 August 2025)

Summary 

On 2 August 2025, the Supreme Court of New South Wales refused an urgent application by the Commissioner of Police (the Commissioner) to prohibit a large-scale “March for Humanity” across the Sydney Harbour Bridge organised by the Palestine Action Group Sydney (PAG). Justice Rigg found that the Commissioner had not established that it was necessary or proportionate to take away the legal protections given to people at an authorised protest, finding that the right to peaceful assembly outweighed public safety and logistical concerns. 

Statutory framework 

Under section 23(1) of the Summary Offences Act 1988 (NSW) (the Act), a public assembly is an “authorised public assembly” if:  

• first, a form 1 notice (public assembly notice) is served on the Commissioner seven or more days before the proposed public assembly date specified within the notice (which can be amended by agreement between the Commissioner and the organiser of the assembly, under section 24 of the Act); and  

• second, either the Commissioner does not oppose the assembly, or a court does not make an order prohibiting the assembly under section 25(1) of the Act. 

In short, if a public assembly notice is served on the Commissioner within seven days, the assembly will be deemed an “authorised public assembly” unless, and until, a court makes an order prohibiting the assembly under section 25(1) of the Act. 

If a court makes an order prohibiting the proposed assembly, persons who participate in the assembly will not have committed an offence for their participation in the unlawful assembly or for obstructing persons, vehicles or vessels within a public space (at [6]–[7]). Rather, individuals who participate in an unauthorised public assembly are not afforded the same protections they would have received if the assembly was an authorised public assembly under section 24 of the Act (see section below for further detail on the language of “authorised public assembly”). Such protections and rights include: 

• immunity from prosecution for any offence of “unlawful assembly” and obstructing a person, vehicle or vessel in a public place; and 

• being shielded from receiving “move-on” directions (under section 197 of the Law Enforcement (Powers and Responsibilities Act) (NSW) 2002 (LEPRA)) premised on mere obstruction of traffic or passers-by. 

However, the police still retain their ordinary powers to arrest for any criminal conduct, to prevent or respond to a breach of the peace and issue directions necessary for public safety unrelated to mere obstruction.  

Facts 

On 26 July 2025, the defendant lodged a public assembly notice under section 23(1) of the Act on behalf of the PAG. The notice was lodged seven days prior to the proposed public assembly. The notice proposed a public assembly on Sunday 3 August 2025, being a rally at Lang Park followed by a procession of approximately 10,000 people across the Sydney Harbour Bridge to North Sydney. Upon serving the public assembly notice, the onus shifted to the Commissioner to apply for and secure an order under section 25(1) prohibiting the public assembly. Accordingly, the Commissioner filed an urgent summons seeking such an order, relying on evidence from senior police, Transport for New South Wales, Fire and Rescue NSW and other stakeholders. Their evidence asserted that: 

• the scale of the march could expand significantly, increasing risks of spillage and accidents on neighbouring roads and pathways (at [35]); 

• closure of the Sydney Harbour Bridge and surrounding arterial roads with only one week’s notice would endanger public safety, impede emergency services and cause severe traffic disruption (at [34] and [36]);  

• the organisers provided limited formal planning documentation and insufficiently considered ingress/egress, crowd management and contingency arrangements (at [34] and [43]);  

• Transport for NSW was given insufficient notice to arrange additional public transport to accommodate the crowds (at [34]);  

• there were isolated antisocial incidents at some previous PAG rallies (at [33]); and  

• the national terrorism threat level remained “probable” (at [38]). 

The defendant filed evidence outlining PAG’s extensive protest history since October 2023, emphasising: 

• having facilitated over 85 successful rallies, often involving thousands of participants, with minimal incident (at [19]–[20]);  

• having a constructive working relationship with police, regular Police-PAG liaison meetings and the use of up to 100 trained, high-visibility marshals, legal observers and first-aid volunteers (at [21] and [24]);  

• the urgent humanitarian motivations for selecting the date and the symbolic route (at [26]);  

• support for the event increased since the filing of the public assembly notice. The event also attracted official endorsement from various civil society organisations, including Amnesty International, the Jewish Council of Australia, various churches, trade unions, and 15 Members of Parliament (at [30]); and  

• the PAG was willing to negotiate adjustments to facilitate the march but opposed any prohibition that would strip participants of their statutory protection under section 24 of the Act (at [28]).
  

Decision 

Justice Rigg declined to make the prohibition order and dismissed the summons. Her Honour noted a court order under section 25(1) of the Act does not render an assembly unlawful; it merely removes the immunity in section 24 of the Act, exposing participants to possible criminal liability for obstruction or unlawful assembly (Commissioner of Police v Rintoul [2003] NSWSC 662 (Rintoul); Commissioner of Police v Gabriel [2004] NSWSC 31) (Gabriel) (at [6]–[7])).  

Justice Rigg also noted  the Act provides no express criteria to consider making an order under section 25 of the Act and held that, consistent with earlier decisions, the Court must strike “a balance between competing rights – the jealously guarded freedom of speech and assembly integral to a democratic system, and the rights of other citizens not to have their activities unduly impeded” (at [10]).  

Risks to public safety and disruption  

The Court accepted that months of planning would ordinarily precede a Harbour Bridge closure and that closure would inevitably cause material inconvenience. Nevertheless, the evidence showed the Harbour Bridge and adjacent roads would in any event be closed for safety reasons whether or not the protest was authorised; the practical difference lay only in the breadth of police powers. Police and emergency agencies retained extensive powers to give directions, arrest for breaches of the peace and manage safety under LEPRA and other legislation even if the assembly remained authorised (at [68]–[69]).  

Scale and uncertainty 

The predicted attendance figures were inherently uncertain, ranging from 10,000 to 50,000 (and potentially 100,000) attendees. Following PAG’s evidence that the assembly would proceed whether authorised or not, Justice Rigg was not satisfied by the Commissioner’s evidence that a prohibition would reduce numbers (at [58] and [70]). Her Honour noted the Court’s decision in Commissioner of Police v Bassi [2020] NSWSC 710 where despite the Court’s prohibition, 20,000 protesters attended the Black Lives Matter rally on 6 June 2020 (at [64]). 

Organisers’ track record 

Her Honour gave significant weight to the organisers’ history of peaceful, well-coordinated protests and their “high level of … commitment to and experience in prosocial protest” (at [69]). Justice Rigg found that evidence of isolated historical infractions by individual attendees did not establish a materially heightened risk for the forthcoming march. The organisers’ track record of partnering with Police in the organisation and execution of each assembly, as well as their history of assisting Police in quelling antisocial behaviour, was persuasive. 

Timing and urgency 

Her Honour accepted the defendant’s evidence as to the timing and urgency of the assembly, in particular, the pressing nature of the humanitarian crisis in Gaza and heightened community concern which rendered the urgent timing of the assembly part of its very purpose (at [26]). To postpone for additional planning would blunt its democratic message (at [68] and [72]).  

The balancing of competing rights 

Justice Rigg concluded that the Commissioner had not demonstrated that the case warranted the exceptional step of removing the participant’s statutory protections (at [71]).  

The Court recognised the competing public interests of: (1) freedom of expression and assembly, at this time and in the manner contemplated, and (2) freedom from disruption or safety risks were both “very high” (at [67]). Regardless of whether the assembly is authorised or not, the Harbour Bridge and roads would be closed in any event, and no evidence was adduced to suggest an unauthorised assembly would increase public safety (at [67]).  

Further, the practical enforcement advantages of a prohibition were limited; Police already possessed adequate powers to address any emergent safety risks, and the Court had confidence that PAG and its supporters would continue to work constructively with the Police (at [68]).  

Finally, her Honour held that authorising the public assembly would facilitate, rather than hinder, the orderly management of the event by providing a clear statutory framework for cooperation between organisers and authorities (at [70]). Consequently, the application was refused.  

Justice Rigg cautioned against characterising a refusal of prohibition as the Court “condoning scenes of violence” (at [72]). The role of the Court is to balance rights, not assume worst–case outcomes when evidence does not establish them. Her Honour was supportive of continued dialogue, noting that the parties remained free to agree on logistical modifications, including a possible short postponement between themselves (at [71]).  

Language of “authorised” and “prohibited” public assembly 

Whilst the public assembly provisions of the Act initially appear to “prohibit” public assemblies, such prohibition does not equate to unlawfulness. Courts have described this term as a “misnomer”, as it does not ban public assemblies but merely withholds the limited protection provided by authorisation (ie certain protections do not apply in a prohibited public assembly) and “impose[s] upon the participants the possibility of the commission of additional criminal offences” (see [1] and [3] of Gabriel; see also Rintoul at [3], [6] and [24]).  Justice Adams in Commissioner of Police v Bainbridge [2007] NSWSC 1015 also stated the use of “prohibition” under section 25 of the Act “prohibits nothing” and similarly notes the purpose of authorisation is to “protect participants in appropriate circumstances from prosecution for certain offences which might otherwise be regarded as having been committed” and any “prohibition” order that the Court makes “could not prevent any other members of the public from exercising their democratic right to assemble and to express their opinions, although in doing so, they are subject to the laws which [he] has mentioned” (at [15] and [17]).  

Commentary 

Practical guidance for police and organisers 

The decision underscores the evidentiary burden on the Commissioner when making an application for a prohibition order. Mere assertions of logistical difficulty or significant disruption or inconvenience are not determinative and instead, detailed, demonstrable risk analysis is required. Conversely, organisers who can show a consistent history of lawful protest, well-trained marshals and active liaison with authorities will likely tip the balance towards authorisation even for largescale events.  

Recognition of contextual urgency 

The Court treated the humanitarian crisis in Gaza as a legitimate contextual factor that intensified the public’s interest in an immediate march. Her Honour cited the judgment in Commissioner of Police v Gray [2020] NSWSC 867 in which the global momentum from the death of George Floyd gave rise to an opportunity to effect social change in Australia. Her Honour held that delay could attenuate or extinguish the impact of assembly and free speech.  

Limits of prohibition as a policing tool 

By pointing to the suite of powers already available under LEPRA, the Court implicitly questioned the utility of a prohibition order in crowd management when protesters are historically peaceful and organised. The ruling suggests that when police can achieve safety objectives through targeted directions and arrests, depriving protesters of statutory immunity is a disproportionate response.  

The full decision can be read here: Commissioner of Police (NSW Police Force) v Joshua Lees [2025] NSWSC 858.