NSW Police urge NSW Court of Appeal to block demonstration
NSW police a restraining order on protest that would subject participants to potential criminal penalties for certain activities, such as obstructing traffic. Protesters are limited from liability for such crimes if the march is authorized.
Risk of contempt
Chief Justice Andrew Bell, presiding over the hearing with justices Ian Harrison and Stephen Free, suggested that a protester’s attendance at a rally could be held in contempt by the court if they knew a banning order had been made.
Lawyers for protest organizers have disputed this characterization, arguing that a restraining order is not an express ban on protesting, but rather removes certain criminal immunity offered to participants in authorized protests. The court is expected to make a finding on this issue.
When is a protest ‘authorised’?
a protest “Authorized Public Assembly“If organizers submit a notification to NSW police at least seven days before the protest:
- The Police Commissioner does not oppose the protest; or
- It is not prohibited by a court.
In this case, notice of the protest was made on Friday. The protest will remain authorized unless the Court of Appeal issues an order prohibiting it.
When a protest is authorized, participants relatively narrow immunity From criminal liability for certain actions related to the protest, such as obstructing traffic. This is not a license to engage in criminal activities.
In the Opera House Protest case, the Court of Appeal also Offenses under the Opera House Regulations Banning protests at facilities would fall within this limited immunity. NSW police have asked the court to find immunity does not extend that far.
finding of genocide
Sydney Barrister Felicity Graham, of the Palestine Action Group and acting for Jewish protest organizers against the occupations, urged the court to find that “a genocide has occurred in the Gaza Strip” or that the organizers have a “reasonable basis” to believe that a genocide has occurred.
Pro-Palestinian protesters outside the NSW Supreme Court on Tuesday.Credit: Janie Barrett
Graham said that was “overwhelmingly important” when the court considered whether to grant a restraining order because it related to the urgency of the protest “when it means more people are being killed every day.”
SC James Emmett, acting for the NSW police, said: “The court cannot do this properly or truly fairly.” He said police accepted that the organizers had a genuine belief that a genocide was occurring.
Protest timing
The planned protest has sparked outrage among sections of the Jewish community, as it comes days after the two-year anniversary of the deadly Hamas attack on October 7, 2023, in which 1,200 people were killed and 250 taken hostage.
A pro-Filestine protest outside the Opera House on October 9, 2023, sparked controversy that lasted for months. The Minns government burned the building’s iconic sails in the colors of Israel’s flag.
Israel’s occupation of Gaza after October 7 resulted in the deaths of more than 60,000 Palestinians and Labeled a genocide in a Landmark United Nations report last month.
The proposed protest follows a historic pro-Palestinian march across the Sydney Harbor Bridge and CBD in August during two years of protests. A police application for a banning order on the Harbor Bridge rally has been withdrawn by the High Court.
The NSW Board of Jewish Members of Parliament, which also represents the views of the Executive Council of Australian Jewry, lodged submissions against the rally.
In an affidavit filed in court, Simone Abel, ECAJ’s legal president, said the proposed march “comes days after the two-year anniversary of the Hamas terrorist attacks … the largest number of Jews killed since the Holocaust.”
The Opera House “was considered a seditious place in the Jewish community,” he said.
Protest Prohibition in Opera House Regulations
The court was also asked to decide whether the limited immunity from criminal sanctions available to participants “in a competent public assembly” should extend to crimes. Sydney Opera House Trust Regulations Prohibiting public demonstrations on premises.
If the court does not order a ban, the march will remain authorized.
NSW police want the court to find that protesters could be charged with offenses under opera house regulations even without a banning order.
political communication
But protest organizers argue that the regulations’ ban on protests at the opera house is either invalid because it falls foul of the implied freedom of political communication in the Commonwealth Constitution or because it is not captured by the ban on conduct subject to political communication.
Supporters in court
Trish Burt was among a handful of pro-Palestinian demonstrators in court to observe the hearing and “fingers crossed” she would be given the green light to protest at the “national icon” opera house.
Burt, who praised the behavior of the police at protests over the past two years, said: “I am here to support the Palestinian cause … I cannot remain silent.”
“There are people in their 70s and 80s. [at the protests]There are lots of people in strollers or holding children’s hands. We have been peaceful the whole time, that is the purpose of these rallies. ”
Another demonstrator, Jacqui, said marches on national symbols were vital “when an issue is this important”, even if it caused “some of us to be uncomfortable”.
