by Ganesh Sahathevan
Bathurst did so publicly at a recent swearing in of new lawyers to his Court. His declaration is problematic for a number of legal reasons (see below) but nevertheless, he is an Australian chief justice, and thus leader in the common law universe. As far as this writer is aware, no where else in the common law universe has any judge, let alone a chief justice, so openly condemned the justice system that he has sworn to be uphold.
TO BE READ WITH
Thursday, December 10, 2020
Chief Justice Tom Bathurst says BLM "exposed that our criminal justice system remains a tool of injustice for Indigenous Australians" : Can the CJ be trusted to uphold the law, did the CJ's personal views expose the people of Sydney to COVID infection?
by Ganesh Sahathevan
The Black Lives Matter movement has exposed the criminal justice system as "a tool of injustice for Indigenous Australians", NSW's most senior judge says.
Chief Justice Tom Bathurst said the movement "has brought the racism, inequality and abuses of power that have haunted our nation for so long to the forefront of public consciousness".
"This year marks 250 years since Captain Cook first landed in Australia," he said on Tuesday at a welcoming ceremony for lawyers freshly admitted to the profession.
"Despite this significant passage of time, the Black Lives Matter movement has exposed that our criminal justice system remains a tool of injustice for Indigenous Australians, who are one of the most incarcerated people in the world."
"This year marks 250 years since Captain Cook first landed in Australia," he said on Tuesday at a welcoming ceremony for lawyers freshly admitted to the profession.
"Despite this significant passage of time, the Black Lives Matter movement has exposed that our criminal justice system remains a tool of injustice for Indigenous Australians, who are one of the most incarcerated people in the world."
This is a shocking thing to say for as Chief Justice Tom Bathurst is entrusted by the people of NSW to uphold the law, not publicly undermine its authority.
Worse, he has by his own words called into question his own decision in a BLM matter that came before him for decision.
In June 2020 Bathurst led a three man panel of the Court Of Appeal NSW in overturning a decision of the Supreme Court NSW that quashed a decision by NSW Police to ban a Sydney Black Lives Matter protest. That decision was made at the height of the COVID lockdown. As reported previously by this writer, in reaching his decision Bathurst ignored the advice of the NSW Health Officer which the NSW Government and NSW Police relied on to enforce lockdowns.
In light of the above, it does seem as Sydney residents in particular were exposed to COVID19 infection by a Chief Justice driven not by the law but his personal sentiments.
TO BE READ WITH
Tuesday, June 9, 2020
The Court Of Appeal has ignored NSW Chief Health Officer Kerry Chant's COVID19 contagion evidence, so can we: Brad Hazzard wrong to say that COA approved Sydney BLM "in a set of specific circumstances"
by Ganesh Sahathevan
Where we differed from the primary judge was in the view that we took of the circumstances in which the Notice of Intention was modified in the course of the week leading up to the proposed assembly, and the legal significance of that modification.
Monday, June 8, 2020
The SMH has reported:
NSW Health Minister Brad Hazzard says the Black Lives Matter protest was an isolated event and pleaded with the community to continue following the state's public health rules.
Mr Hazzard said the protest was "approved by the Court of Appeal (COA) in a set of specific circumstances" but warned health officials remained very concerned that COVID-19 was "still amongst us".
"For that reason, the NSW government implores the community to stay with us on the journey to keep all of us safe from the virus that is still wreaking havoc on communities overseas," he said.
Contrary to what Hazzard has had to say, the COA made it clear that it was not concerned with the evidence of COVID19 contagion, including the affidavit of the NSW chief health officer, Kerry Chant.
NSW Health Minister Brad Hazzard says the Black Lives Matter protest was an isolated event and pleaded with the community to continue following the state's public health rules.
Mr Hazzard said the protest was "approved by the Court of Appeal (COA) in a set of specific circumstances" but warned health officials remained very concerned that COVID-19 was "still amongst us".
"For that reason, the NSW government implores the community to stay with us on the journey to keep all of us safe from the virus that is still wreaking havoc on communities overseas," he said.
Contrary to what Hazzard has had to say, the COA made it clear that it was not concerned with the evidence of COVID19 contagion, including the affidavit of the NSW chief health officer, Kerry Chant.
As the COA put it:
Where we differed from the primary judge was in the view that we took of the circumstances in which the Notice of Intention was modified in the course of the week leading up to the proposed assembly, and the legal significance of that modification.
It follows from what has already been said that identification of the statutory context in which public assemblies and rallies may be held in New South Wales is of first importance in understanding both the decision at first instance and our subsequent decision on appeal.
In lay terms this was the equivalent of saying COVID19 contagion and its consequences, including death, were not not relevant; what mattered was whether the proper form had been adhered to.
The COA's decision had nothing to do with the right to protest or anything like that.Again in the words of the COA:
Competing public interests of great importance were thus potentially engaged but, as we shall explain, the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required.
The COA has ignored the advice of NSW chief health officer, Kerry Chant.So can we, the rest of NSW.
END
TO BE READ WITH
TO BE READ WITH
Monday, June 8, 2020
Sydney Black Lives Matter protest appeal: Court Of Appeal did not consider COVID19 contagion and its consequences; COVID19 contagion considered irrelevant despite Fagan J clearly citing COVID 19 restrictions
by Ganesh Sahathevan
In the reasons for their decision in the Sydney Black Lives Matter protest appeal Bathurst CJ, Bell P, Leeming JA sitting as the Court Of Appeal NSW said:
The proceedings before the primary judge (Fagan J) related to a proposed public assembly set to commence in Sydney at 3.00 pm on Saturday, 6 June 2020.
In the reasons for their decision in the Sydney Black Lives Matter protest appeal Bathurst CJ, Bell P, Leeming JA sitting as the Court Of Appeal NSW said:
The proceedings before the primary judge (Fagan J) related to a proposed public assembly set to commence in Sydney at 3.00 pm on Saturday, 6 June 2020.
The assembly had been organised by the appellant (Mr Bassi) in response to the tragic death of Mr George Floyd in Minneapolis in the United States of America on 25 May 2020, in furtherance of the Black Lives Matter cause in general and in particular memory of an indigenous Australian, Mr David Dungay.
Mr Floyd's death and the circumstances in which it occurred have sparked public protests throughout the United States and indeed throughout the world. These protests have been occurring, however, at a time when the world including Australia, has been dealing with the COVID-19 pandemic. One of the public health measures deployed in response to the pandemic has been "social distancing" with related restrictions being placed upon public gatherings. These measures have been designed to minimise the scope for community transmission of the coronavirus.
Competing public interests of great importance were thus potentially engaged but, as we shall explain, the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required; rather, the appeal was allowed by reason of the operation of the provisions of the Summary Offences Act in the context of a notice of intention to hold a public assembly (the Notice of Intention) which had been given pursuant to that Act by Mr Bassi to the Commissioner on 29 May 2020.
Where we differed from the primary judge was in the view that we took of the circumstances in which the Notice of Intention was modified in the course of the week leading up to the proposed assembly, and the legal significance of that modification.
It follows from what has already been said that identification of the statutory context in which public assemblies and rallies may be held in New South Wales is of first importance in understanding both the decision at first instance and our subsequent decision on appeal.
Fagan J the primary judge was reported to have said in his oral judgement:
“No one denies (the protest organisers their grievances about Aboriginal treatment at the hands of police) but we’re talking about a situation of a health crisis ... Everyone has given up a lot in order to defeat the disease on the basis that this is best advice health officials have given us (including an affidavit from the NSW chief health officer, Kerry Chant).
“I cannot accept that these proposals ... should take the place of the public health order which applies to all citizens.....”
Given the grounds of Fagan J's judgement it is difficult to see how the Court Of Appeal decided that their overturning Fagan J's decision did not ultimately turn on a difficult weighing exercise that resolution of that competition (between the right to protest and the COVID 19 restrictions) would necessarily have required.
Meanwhile, as a result of their decision, a virus seeding even was permitted. It was serious enough for the President Of Australian Medical Association to issue this warning
“Mass gatherings are certainly the last gatherings on the list (of restrictions) and it was clearly against the advice of all the health authorities.”
He said anyone who attended the protests should “consider their position”, adding the “only safe way … of minimising any risk of it (coronavirus) spreading over the next 14 days is to ensure that we keep our distance from the rest of the community”.
Police men and women who were at the frontline of controlling the protests permitted by the Court Of Appeal are probably among the most likely to be infected (see photo above).
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