New South Wales’ top court has made a landmark ruling that criminalises attending a “prohibited” protest, with the court of appeal banning a planned pro-Palestine march to the Sydney Opera House scheduled for this weekend.
The court of appeal on Thursday ruled that anyone marching on the Opera House on Sunday could be held in contempt of court, as it sided with police against the Palestine Action Group due to “extreme” safety concerns.
The barrister for the Palestine Action Group, Felicity Graham, had argued on Wednesday that finding someone in contempt of court would be a “radical departure” from what the supreme court had previously said about orders prohibiting rallies.
Under a regime introduced in NSW in 1979, protest organisers can apply to police ahead of time using a notice of intention to hold a public assembly – commonly known as a “form 1”. If police oppose the form 1, the supreme court has the final say over whether the protest will be “authorised” or “prohibited”.
Graham pointed out in court that, despite what the prohibition terminology suggested, the court had consistently understood it to merely mean people were not afforded immunity under the Summary Offences Act for obstructing traffic, for example.
Graham had argued that it would undermine the form 1 system if ignoring a court order regarding a protest was an offence, because it would deter organisers from completing the form, which is not compulsory.
But the court found her argument was not “persuasive” and that the text of the legislation was “decisive”.
“It would be highly incongruous for the legislature to empower the court to make an order ‘prohibiting’ the holding of a public assembly, if the terms of that order did not accurately reflect the legal consequence of the order,” the justices – which included the chief justice of NSW, Andrew Bell, and justices Ian Harrison and Stephen Free – wrote in their judgment.
“A breach of that order may render persons with knowledge of that order in contempt of court. This court proceeds on the basis that its orders … will be respected and obeyed.”
The penalty for contempt of court is at the supreme court’s discretion, with no maximum penalty. Attending a prohibited protest could also potentially see people charged under section 545c of the Crimes Act, which criminalises knowingly joining an unlawful assembly. That offence carries a maximum penalty of six months in jail.
Outside court, Nick Hanna, a lawyer for the Palestine Action Group, said Thursday’s ruling would have wide-ranging impacts on the right to protest across Australia.
“That hasn’t been the understanding of both the police and protesters previously,” he said.
“It doesn’t matter whether your cause is ending the genocide in Gaza or whether it’s protesting against racism or for a pay rise as a union member. This judgment will have very important ramifications for the right to protest in Australia.”
Sue Higginson, a spokesperson for the Greens, said it was difficult to predict whether the ruling would dissuade protesters from using the form 1 system.
“I’m not sure the court of appeal has genuinely considered there is a chilling effect when we see these kind of judgments that ultimately take a draconian approach to the fundamental right for people to protest,” she said on Thursday.
Last November, the court issued a prohibition order against Rising Tide carrying out a blockade of the Newcastle Port to demand greater action on climate change, citing safety concerns. But the organisers went ahead with the protest anyway.
Just over two months ago, the Palestine Action Group faced the NSW supreme court in its bid to march over the Sydney Harbour Bridge after the police also cited safety concerns and issues with short notice.
The protesters won, with an estimated 225,000 to 300,000 people attending.
Palestine Action Group changes route
The Palestine Action Group and Jews Against Occupation, who had proposed marching to the Opera House, told the court shortly after Thursday’s ruling they would change Sunday’s route.
A spokesperson said the protest – calling for “an end to genocide in Gaza” – would instead march from Hyde Park and along George Street to Belmore Park.
They called on the NSW premier, Chris Minns, to light the Opera House sails with the Palestinian flag. Two years ago, shortly after Hamas attacked Israel on 7 October with 1,200 people killed, the NSW government lit up the sails in the colours of the Israeli flag. Minns on Thursday said that would not be happening.
Hanna said outside court: “We didn’t take on this fight because we thought it was easy. We took it on because it’s the right thing to do. Every major human rights organisation across the world has now concluded there is a genocide taking place in Gaza and that includes major Israeli human rights organisations.” Israel has rejected that it is committing genocide.
The assistant police commissioner Peter McKenna said during Wednesday’s hearing that he was concerned about the risks of crowd crush and limited police resources to manage an Opera House rally.
The court also heard that the police would advise the Opera House to stop and search people, given the general level of security threat across the country. Under bylaws that govern the Opera House, it has the right to conduct security screenings, which include bag searches and X-ray screening.
McKenna said after Thursday’s ruling: “I’ll say to anyone who thinks that they could go to the Opera House still and be a part of any type of demonstration or public assembly, that you will be committing an offence, and appropriate action will be taken by us.”
The assistant commissioner said he did not expect the ruling to lead to fewer form 1 applications in the future.
“Not at all,” he told reporters. “We still have powers that we can utilise without the form 1 process … that process actually protects people from committing certain offences. It allows us to work with them. It allows us to keep them safe.”
The court of appeal had allowed two prominent Jewish groups, the Executive Council of Australian Jewry (ECAJ) and the Jewish Board of Deputies, to provide evidence opposing the rally.
Barrister Vanessa Whittaker, speaking on behalf of the ECAJ, told the court the planned protest’s proximity to the second anniversary of 7 October and its location would create “further fear of antisemitism, which includes violence, and further distress amongst the Jewish community”.
Justice Free said the court of appeal bench was unanimous in its decision to prohibit the protest.
He cited several safety concerns, including the lack of sufficient exit points for an expected crowd of 40,000, and the route containing “pinch points” which he said “would give rise to the risk of crowd crush as the route narrows, particularly as it approaches the Opera House forecourt”.
“A further complication would be the likely response of the Opera House Trust consistent with its protocol for mass events of conducting searches of those seeking access to the forecourt. This would be likely to cause significant delays in the progress of the crowd when it reaches the forecourt, and augment the risk of crowd crush,” Freee said.
“The mitigatory factors advanced by the organisers were not such as to reduce the risk to public safety to an acceptable level.
“The court further held that the risk to public safety associated with this public assembly was so significant that it would be irresponsible to allow the public assembly to proceed irrespective of the political significance of the event and the importance of freedom of political expression.”
The NSW premier, Chris Minns, said the court of appeal’s ruling was the “right decision”, adding “common sense” had prevailed.
“We expect all applicants to abide by the court’s decision,” he told reporters. “Reasonable people in Sydney would expect the police to uphold this judgment.”
