The Palestine Action Group has asked a Sydney court to find that Israel is carrying out a genocide in Gaza, as activists push to hold a protected protest at the city’s Opera House.
A representative of the group and another from Jews Against Occupation were taking on New South Wales police in the state’s supreme court after the force opposed a proposed march from Hyde Park to the Sydney Opera House on 12 October.
Police have cited safety concerns while the protest organisers are calling for “an end to genocide in Gaza”.
On Tuesday, justice Ian Harrison briefly heard the matter before it was moved to the court of appeal after an application by police lawyers due to the protest being days away and other legal complexities.
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Nicholas Hanna, a lawyer acting for the groups against NSW police, said outside court they would be asking the court of appeal on Wednesday to make a positive finding of genocide when considering Sunday’s planned protest.
Hanna said an affidavit from Chris Sidoti had been submitted as part of the group’s evidence that Israel’s conduct amounted to genocide. Sidoti is one of Australia’s most experienced international legal experts and a member of the UN independent international commission of inquiry, which issued a report last month stating that the Israeli government and military were committing genocide in Gaza. Israel has rejected the report’s findings.
Hanna was asked outside the supreme court if it was beyond the appeal court’s jurisdiction to make such a finding. He said it wasn’t, given the court needed to weigh up “the seriousness and urgency of the cause” when determining if NSW police were justified in seeking to prohibit the protest.
“Genocide is the crime of crimes, and that’s what Israel’s committing, and that’s why we say it’s relevant,” he said.
Justice Desmond Fagan, during a directions hearing on Friday, referred in court to Israel’s conduct as genocide.
At one point, he said he thought the crowd could exceed 100,000 because of “what appears to be the sentiment in the community, and that has developed over two years of sort of real-time broadcasting of genocide of too many people”.
Fagan urged police to consider the “strengths of feelings” on the issue within the community.
The assistant commissioner Peter McKenna announced on Friday that NSW police were knocking back the Palestine Action Group’s “form one” application to hold an authorised protest due to safety concerns, including the potential for a crowd crush.
Police said they were open to negotiating an alternative route and “understand that this is a significant anniversary”, two years on from 7 October and the start of the Israel-Gaza war.
A form one, if accepted by police, protects those attending a protest from being charged for certain actions – such as obstructing traffic – under the Summary Offences Act.
When police reject an application, the court has the final say over whether a protest should be “authorised” and attendees afforded legal protections.
The court heard on Tuesday that one of the legal complexities to be dealt with by the court of appeal was whether authorising the protest would conflict with legislation governing the use of the Opera House, which restricts protests.
The Executive Council of Australian Jewry (ECAJ) and the Jewish Board of Deputies were planning to challenge Sunday’s protest and its location.
A lawyer appearing before the court on behalf of the groups on Tuesday said some members of the Jewish community were fearful because of what unfolded at the Opera House on 9 October 2023.
Protesters marched from Sydney’s Town Hall to the Opera House two years ago when the sails were lit in blue and white to commemorate the victims of the Hamas attacks on Israel that killed about 1,200 people.
A group of people – who police later confirmed were not part of the Palestine Action Group and said weren’t at the initial Town Hall rally – lit flares and yelled antisemitic chants, including “Fuck the Jews”.
The court was yet to decide whether the Jewish groups’ application would be heard.
The ECAJ co-chief executive, Alex Ryvchin, said on Tuesday that Sunday’s planned rally would “incite yet more hatred against our community”.
“They will do so once again at a national landmark, at great public expense, and they will shred what little harmony remains in this society,” he told reporters.
“And the cost of all this will be borne by all of us in the form of higher security and social cohesion programs to undo some of the harm we are allowing them to inflict. This madness has to stop.”
Just over two months ago, the Palestine Action Group went to the supreme court in their bid to march over the Sydney Harbour Bridge. The protesters won, with an estimated 225,000 to 300,000 people attending the rally.
