Pro-Palestine group loses legal challenge against sweeping NSW police powers for Isaac Herzog’s visit | New South Wales politics

The Palestine Action Group has lost its legal battle against the Minns government’s broad powers to the police during Israeli President Isaac Herzog’s visit.

It means police can search anyone in the CBD and eastern suburbs by Thursday under the state’s “major incident” legislation, which is usually used for sporting events. Police will also have the power to remove people, close certain places and issue orders to prevent disruption or risk to public safety.

Those who do not comply with the instructions may face penalties, including fines of up to $5,500.

The group faced the state in the high court in Sydney before Justice Robertson Wright on Monday after making an urgent challenge to the powers ahead of a planned protest at Sydney town hall on Monday evening.

Protesters will march to state parliament on Monday evening, potentially breaching another anti-protest restriction adopted in the wake of the Bondi terror attack. This declaration, known as the declaration of restriction of public gatherings, gives the police full powers under the Summary Offenses Act for offenses such as obstructing traffic.

On Saturday, the Minns government declared Herzog’s visit a major event, further expanding police powers, prompting the group to file an appeal against the decision on Sunday.

Lawyer Felicity Graham, acting with Peter Lange SC on behalf of the group, argued the government was inappropriately using the law as a “backdoor way” to reduce protests.

In court, the government rejected the suggestion that the powers were used improperly, arguing that it was necessary to ensure the security of the Israeli president and society.

Shortly before the decision was announced, Graham said a government briefing showed police listing him as a “supporter” of Herzog’s visit and referring to protesters as “spectators.” He said this further proved his claim that the action was being used inappropriately, suggesting it was “a square peg trying to be pushed into a round hole”.

While Graham argued that the government was using this law inappropriately, he pointed to the government’s statement on Saturday that “we cannot allow a situation where mourners, visitors and protesters are brought together in such a way that they risk conflict, violence or disruption of public order.”

He cited sports minister Steve Kamper as saying the clash between protesters and authorities could make world news and affect the reputation of the state and Australia.

“You could say the quiet part is said out loud,” Graham said.

“This is about stopping legitimate political expression in public squares against a controversial visiting head of state of a country who is before the international court of justice on charges of genocide.”

Wright questioned this. The judge suggested the government’s aim was to keep opposing groups separate in the context of security risks following the Bondi terrorist attack, in which 15 people were killed during Hanukkah celebrations.

Graham disagreed: “In terms of where the president expects to be, it’s hard to match that with the scope of the major event declaration.”

“Just as the law prohibits declaring a protest as a major event, we say that a major event cannot be declared so broadly, unspecifically, as to describe only a four-day period and a very broad geographic area as a backdoor way to shut down general location protests.”

Lange argued that the scope of the powers was unreasonable in this case. He said the declaration gave police the power to ask any person living in the eastern suburbs within the next four days to open their bag, container or “anything else” they own.

Brendan Lim SC, for the government, argued that the legislation did not define what constituted an “incident” and therefore should be given a “broad meaning”.

“This is to maintain the safety and security of the president, dignitaries and the community at large, in light of the threat of domestic terrorism and increasing community tensions and the need to safely manage potentially large crowds,” Lim told the court.

“This is not a goal of suppressing protests, but a goal of ensuring security.”

The government’s lawyer said the police’s separation of Hyde Park from the declaration showed that the real goal was not to quell the protests – despite Graham’s earlier claims that it was a distraction.

Wright was expected to make a decision on whether the government had appropriately exercised its powers under the state’s major events legislation around 4pm. The protest against the Israeli president was planned to start at the city hall at around 17.30.

The group planned to march in violation of another protest restriction: a public gathering restriction declaration extended by police last Tuesday.

The extension prevents protests from being permitted under the form 1 system, effectively banning marches in designated areas without risk of arrest. The current designated area includes the town hall and covers the northern part of the CBD and eastern suburbs but does not include Hyde Park.