Police in New South Wales have won a Supreme Court bid to prohibit Sydney’s weekend Black Lives Matter march.
NSW Police took organisers to court, concerned the event would breach Covid-19 public health orders about social distancing after about 10,000 people flagged an intention to attend.
Justice Desmond Fagan acknowledged he was balancing the recognised right of public assembly against health risks, but ultimately said a rally of even 5000 people was “a very undesirable idea” given the current health advice.
“The exercise of the fundamental right of assembly is not taken away by the current public health order, it is deferred,” Justice Fagan said.
Before the hearing, organisers declared the rally would go ahead regardless of the outcome of the court case.
Fagan acknowledged the rally’s aim was to raise awareness about Indigenous deaths in custody, among other issues.
“There is no doubt that cause is one that is widely supported in the community and with great strength and feeling,” he said.
But he said granting a court order to allow the rally would amount to “a defiance of a judgment that has been made by ministers of the government and the public health officials that advise them”.
The state’s Chief Health Officer Dr Kerry Chant was among witnesses to give evidence and told the court while there was a low level of community transmission in NSW, an event that large would increase the risk.
“At this current point in time, even despite high rates of testing, there is a possibility we are missing cases in the community,” Chant said.
Modelling on behalf of the commonwealth predicted an “upswing” in cases as Covid-19 restrictions eased, although the modelling did not consider specific events.
Organisers insisted the risk of spreading infection could be minimised by handing out masks and hand sanitiser and using 50 marshals to encourage social distancing in the large crowd.
Barrister Emmanuel Kerkyasharian, for the organisers, submitted the “safer course” would be to allow the rally with social distancing measures.
“What’s going to happen is people are going to turn up and be more tightly packed, increasing the risk of community transmission,” he said.
But Justice Fagan rejected that argument.
The case also hinged on what notice organisers gave police about the gathering, the amendments to that notice when expected numbers ballooned, and whether police gave inferred consent for the march to proceed.
The court ruled organisers had not provided the required seven days’ notice – therefore without the agreement of the police commissioner for the event to proceed, they required a court order to deem it lawful.
Police urge protesters to stay at home
NSW Police Assistant Commissioner Michael Willing asked protesters to stay home and said there would be significant police resources in the city to “deal with any situation that arises”.
“I would ask that people not attend [Saturday]. Express your views and your opinions in a different manner at this time,” he said.
“Police will have a strong presence [Saturday] to ensure the law is obeyed.
“If people choose to disobey the Supreme Court ruling and attend the planned protest regardless, they need to be aware they are doing so unlawfully and police will respond accordingly.”
Willing said police understood “the sensitivities around this matter” but would “consider any option” to respond if protesters came into the city en masse.
Greens MP David Shoebridge said the court’s decision was “clearly a disappointing outcome”.
“What this means is that the organisation that was there to make this rally as safe as possible, to ensure that the social distancing was as thorough as possible, that organising can no longer continue,” he said.
“Effectively the police have taken over responsibility for what happens [today] out of the hands of the protesters.”
Shoebridge said he would still attend to ensure it was “as safe as possible”.
“I would expect that a significant number of First Nations people will still come out [Saturday] … and they will still be calling for solidarity,” he said.
“It’s now up to individual people to make their decision if they attend or not if they show that solidarity.”
He urged people to adhere to social distancing rules and called on police “to do all that they can to ensure that any gathering is as safe as possible now they have assumed responsibility for it”.
In a press conference before the decision was handed down, Leetona Dungay, the mother of David Dungay who died in custody at Long Bay Jail while being restrained by five prison guards said nothing would stop her from marching in Saturday’s rally.
“The correctional services officers … put my son in the ground and I’m going to walk on it for my march, just like George Floyd and Black Lives Matter,” Ms Dungay said.
“We own this land and you’ve got to see what’s happening from the past to the present with our ancestors … racism still exists here … and that’s what killed my son.”
Hundreds of people marched through Sydney’s city on Tuesday night, calling for better treatment of Indigenous Australians as protests continue across the United States over the death of George Floyd.
NSW coronavirus social distancing laws stipulate gatherings of more than 500 people are illegal.