NSW Supreme Court Chief Justice Bathurst who ignored the danger of COVID contagion when allowing BLM protest now demands all who appear in his court be double vaccinated - Direction issued while plaintiffs fighting jab mandates await decision from Bathurst's Supreme Court

 by Ganesh Sahathevan 

Police clashing with BLM protesters inside Central Station in
June last year. Source: AAP

The Chief Justice NSW Tom Bathurst issued COVID related directions on 8 October 2021 which included  this requirement:  

In June last year Bathurst led the three man Court Of Appeal panel that unanimously decided that the Black Lives Matter protest could go ahead. NSW Health advice on contagion which NSW Police had relied on in their decision to disallow the BLM protest was ignored (see story below).

Bathurst's vaccine mandate would concern plaintiffs fighting vaccine mandates in their workplaces before Bathurst's Supreme Court.

The decision in two matters that were heard together over the past three weeks before Justice Richard Beech-Jones is expected on Friday 15 October 2021.

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

Police clashing with protesters inside Central Station. Source: AAP

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).

END