The NSW Supreme Court has dismissed the cases of two protesters who challenged fines they received for contravening public health orders during the COVID-19 pandemic in 2020.
Chad Stratton and Ruby Pandolfi were both issued penalty notices, at a time when there were restrictions on gathering outdoors in groups of more than 20.
Mr Stratton attended a Black Lives Matter rally at the Domain in Sydney in late July 2020.
Ms Pandolfi took part in an October 2020 rally in Taylor Square, in response to a proposed law by One Nation NSW leader Mark Latham, that sought to prevent teaching and discussion about transgender issues in government schools.
Both events had COVID-19 safety protocols in place, but were not authorised public gatherings.
The two plaintiffs argued they attended the events as a form of political communication, and that two sections of the Public Health Act imposed an "unjustified burden on the implied freedom of communication on governmental and political matters".
The defendants also argued that gathering outdoors for a demonstration about political matters would be a "reasonable excuse" for not following the COVID-19 restrictions.
Justice Anna Mitchelmore rejected their arguments and dismissed the cases.
Last year, the court heard evidence from Deakin University epidemiologist Catherine Bennett, who testified that in July and October 2020, the risk of outdoor transmission of COVID-19 was very low.
There had been no outdoor transmission events reported in Australia that year, Professor Bennett said.
Jeremy McAnulty from NSW Health, told the court the risk at outdoor gatherings was highest when large groups were crowded together and were speaking, cheering, singing, or chanting.
The judge was told it was more difficult to contact trace and enforce safety plans at "unstructured" public gatherings, compared to ticketed events like sporting matches.
During cross-examination, Dr McAnulty said he was not aware of any scientific or epidemiological basis for the 20-people limit in two public health orders that applied during 2020.
But, he said it was a matter of logic that the more people who were together, the higher the risk of COVID-19 exposure.
He was shown footage of rugby league games which occurred within days of each of the protests, where thousands of spectators were cheering, standing up, and moving around.
Dr McAnulty said the risk factor of events depended on things like the density of people, the likelihood that someone was infectious, and the ventilation, and wasn't able to give a view as to their level of risk.
However, in her judgement, Justice Mitchelmore noted much of that evidence was not relevant to constitutional questions she was required to answer as part of the cases.
Solicitor Emma Hearne from the National Justice Project said Thursday's decision would "embolden" state governments to crack down on the right to protest.
"We won't let the NSW government muzzle our democracy without a fight," she said in a statement.
"We will continue to challenge police and government overreach, because our rights are too important to delegate to a minister."
Ms Hearne said one of her clients still had an avenue to challenge the penalty based on the Supreme Court's ruling in the separate case.
Earlier this month, the future of thousands of other fines was cast into doubt by a ruling from Justice Dina Yehia, in a separate case.
In that matter, the court found penalty notices must clearly and unambiguously specify the offence for them to comply with the Fines Act.
For that reason, the August 2021 penalty notices handed to two plaintiffs in that case — including one for gathering in a public place — were found to be invalid.
