A Black Lives Matter rally planned for inner Sydney on Tuesday is a prohibited public assembly, the NSW Supreme Court has ruled, but protest organisers are expected to lodge an immediate appeal.
Police took court action seeking a prohibition order for the rally organised by the family of David Dungay jnr, a Dunghutti man who died in custody in 2015 after he was held down by Corrective Services officers while gasping "I can't breathe".
A plan submitted to police by organiser Paddy Gibson said an estimated 500 people would walk from Town Hall to Parliament House to present a petition calling for criminal charges against the prison guards who restrained Mr Dungay.
Inquest findings last year did not recommend criminal charges, which Mr Dungay's family had sought. The rally is planned for Tuesday to coincide with the first sitting day of the NSW lower house.
In a judgment on Sunday, Justice Mark Ierace granted the prohibition order, but police agreed to a stay stopping the order taking effect until 10am on Monday pending the lodging of any appeal.
A prohibition order does not ban the rally outright, but leaves participants exposed to potential criminal sanction including for blocking traffic or breaching public health orders.
David Dungay's nephew Paul Silva outside court on Thursday.Credit:Janie Barrett
Mr Gibson said outside court on Sunday the protest would go ahead in any case but "we will be running into the Court of Appeal to try and maintain the legitimacy of our initial protest application".
He said police had turned the protest "into this massive media controversy where we're being demonised" and "there is nothing for people in this city to fear from these rallies".
"The only people that have anything to worry about these rallies [are] the people who have an interest perpetuating racism and injustice against First Nations people," Mr Gibson said.
He said organisers understood that there was "an enormous amount of fear and anxiety across Sydney about the renewal of community transmission of coronavirus".
The government and Police Commissioner Mick Fuller had "very, very unfairly ... channelled that anxiety towards the people organising a protest of a few hundred people who are going to be spaced out" and wearing masks, he said.
Barrister Felicity Graham, appearing for the protest organisers, told the court appeal documents could be lodged "by perhaps 7pm tonight".
Ms Graham said protesters would also consult police about moving the protest to The Domain behind NSW Parliament.
But Acting Assistant Police Commissioner Stacey Maloney has previously indicated in court that this would not be an acceptable alternative because "people would have to congregate and travel to that destination".
Speaking outside court this week, Mr Dungay's nephew Paul Silva said the rally would proceed regardless of the court's decision, because "at the end of the day this is our land, and we should be free to walk on our land".
Black Lives Matter supporters outside the NSW Supreme Court.Credit:Janie Barrett
"Aboriginal people own this land and have owned this land for so many years before it was taken away from us," he said. "We should have the right to peacefully protest to demand justice.”
Ms Graham told the court on Friday that police may have caused "more people to turn out than might otherwise be the case" had they not sought a prohibition order.
Barrister Michael Spartalis, appearing for NSW Police, said all of the evidence in the case justified prohibiting the protest on public health grounds. He said if someone was infected at the rally, the effects are "exponential" and the consequences significant.
On Thursday NSW Health Minister Brad Hazzard and Treasurer Dominic Perrottet urged protest organisers to reconsider the march amid a growing coronavirus outbreak in Victoria and NSW.
"Now is not the right time to be on the streets and intermingling with each other," Mr Hazzard said.
A Supreme Court decision about whether to grant a prohibition order is final and cannot be appealed, but protest organisers had sought a related declaration. Justice Ierace's refusal to make that declaration can be appealed.
Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.
Georgina Mitchell is a court reporter for The Sydney Morning Herald.
Laura is a journalist for The Sydney Morning Herald.
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2020-07-26 02:22:00Z
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