It’s OK to shut down the Harbour Bridge, but not the Opera House?

The takeaway from the NSW Court of Appeal decision will be simple: it’s okay to close the Harbor Bridge for a pro-Palestinian march Occupy the Opera House forecourt for the same purpose. Why is one cultural symbol protected and another not?

That’s a fair question, and I’m not sure the court has a convincing answer to it. This does not mean that the decision made after an emergency hearing was wrong. There’s quite a bit to unpack here.

Important context: For two years, the Palestine Action Group has been holding weekly protest rallies to support the Palestinian cause and oppose Israeli actions in Gaza. As the court noted, these meetings were trouble-free and “we must thank the organisers, participants and the police for conducting such meetings in an orderly manner”.

The March for Humanity over the Sydney Harbor Bridge, which police unsuccessfully asked the court to block, was expected to attract 40,000 people but turned out to be too large; As many as 300,000 people gathered in the rain. Again, without any problems; Remarkably so, given the numbers and the police decision at the last minute to do what NSW Deputy Police Commissioner Peter McKenna told the court should never have happened: “you don’t turn the crowd on themselves”.

In this case, the plan was to take a walk this Sunday from Hyde Park through the city, ending in the forecourt of the Opera House. Organizers revised their estimates of the expected crowd to 40,000. The police expect much more.

NSW has one of Australia’s most repressive legal regimes governing public gatherings. In particular, it reinforces the idea that coming together to protest is something the police have a big say in preventing, rather than a fundamental human freedom protected by law.

Like this, Summary Offenses Act It gives police the option of going to court to get an order “banning” any proposed assembly. That’s what NSW Police were looking for here; It was thought that gathering such a large number of people at the Opera House would pose serious risks to public safety.

The court took the opportunity to dispel the legal myth that the media has been propagating for years (and continues to report even after yesterday’s decision): that the court cannot prevent the rally from taking place, it simply deprives its participants of legal protections.

The court decided, in clear terms, that if the police issued the kind of order they were seeking, “banning” the march would have legal consequences. So, if anyone comes forward to do what the court has forbidden, they will be committing serious contempt of court and can therefore be sued.

This is a legal oddity because the act itself does not constitute the crime of non-compliance with the restraining order. But the court was extremely strict: The law gives us the power to tell us not to be in a certain place at a certain time for a certain purpose.

From here it was a matter of balancing the irreconcilable: the people’s desire to express their political views in the most public way possible and the authorities’ preference for peace and quiet. More precisely, passivity and tranquility.

The rally organizers argued – radically – that the court must determine the central issue: whether Israel committed genocide in Gaza. They argued that if the court said yes, there would be genocide and that this would seriously hinder the case for banning the protest.

The court said no, we are not touching this. Fair enough; This was not the place to try to answer one of the most debated questions of international law in the world. But even if it answered the question, the court stated that “such a finding would not logically support the conclusion that a public meeting that is improper because it poses a serious risk to public safety, for example, should be treated appropriately.”

I don’t know about this. In this case, it was public safety that tipped the balance towards prohibition. But “for example” is important because there are other reasons why the court may issue a restraining order in certain cases, such as privacy, protection of property, or the more vague “public order.”

While it is appropriate not to attempt to answer the question of genocide in this context, there may be cases where factual findings on controversial questions are relevant to the balance between freedom of assembly and more mundane concerns, such as the risk of crowd crushing. The court had little time to consider its reasoning, but I think it may have inadvertently laid the foundation for future unfortunate repressions.

As for the Opera House decision, the logic is easy to see; It is a dead end street with narrow access. The situation can be dangerous if very large numbers appear. However, the Harbor Bridge also had only two entrances and exits, and that day the police reduced the number to one. I’m not sure the court explained the difference convincingly.

To be honest, the law governing public gatherings in NSW doesn’t make much sense. This case exposed his irrationality.