Black Lives Matter protest: Supreme Court stops Saturday protest in Sydney
Black Lives Matter rally organisers are lodging a legal appeal to be allowed to hold a protest in Sydney today. This comes after the NSW Supreme Court banned the event over coronavirus concerns as other rallies are being held across Australia.
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Black Lives Matter organisers are lodging an urgent legal appeal in a bid to overturn Friday’s Supreme Court decision not to authorise today’s rally.
Supreme Court Justice Des Fagan refused to acknowledge the legal status of the planned rally, ruling there had been insufficient notice of a changed route and that the health risks relating to the COVID-19 pandemic outweighed the right to protest.
Organisers are lodging their papers with the NSW Court of Appeal this morning, claiming the rally is legally authorised.
The appeal is listed before three judges at 1.45pm.
NSW Greens MLC David Shoebridge said the appeal followed advice from the legal community that the court decision was flawed.
“There has been a groundswell of support from the legal community,” he said.
“The advice they have given organisers is that there were significant legal flaws in the decision that amount to jurisdictional error.”
But although NSW’s highest court banned Sydney’s Black Lives Matter protest over coronavirus concerns, marchers have vowed to press ahead with rallies around Australia.
Protesters have vowed to attend today’s Sydney rally despite the ban delivered in a last-minute decision to prevent virus spread after the government tried to intervene.
The hashtag #BlackLivesMatterAustralia has remained trending on social media on Saturday, with thousands of posts flooding Twitter from people who intend to march regardless of advice from authorities.
UPDATE: Appeal is now listed before three judges at 1:45pm. There should be a live link available. https://t.co/tBjAp3qgAW
— David Shoebridge (@ShoebridgeMLC) June 6, 2020
Mr Shoebridge said “it’s certain that large numbers of people will gather” at the banned event today.
He also tried to shift responsibility for the safety of protesters onto the government.
“By bringing this application the Premier and Police Commissioner have effectively cut the organisers out,” he said on Saturday morning.
“All the preparations that organisers have made to make it as safe and peaceful as possible are now at risk.
“By taking this action the Premier and the Police Commissioner have now assumed responsibility for the safety of the gathering.”
The NSW Police Force posted a message on Facebook at 1pm to remind people they were not allowed to protests.
“The community is reminded that the Supreme Court has ruled that the planned protest in Sydney’s CBD this afternoon will not go ahead due to health and safety concerns associated with COVID-19,” the message states.
“People are being urged not to attend. Police are out in force and if people choose to disobey the Supreme Court ruling and attend the protest regardless, they need to be aware they are doing so unlawfully and police will respond accordingly.”
One Twitter user posted: “You don’t need the permission of the powerful to do what is right. Looking forward to seeing Sydney on the streets! Be smart & be safe! #BlackLivesMatterAustralia.”
Another user said: “Of course I’m worried about my son going to #BlackLivesMAtterAustralia, but he has my number, protective gear, knows how to read police, how to treat pepper spray, and his rights with police. Mum’s of Aboriginal kids worry their kids will die in custody. See you on the streets.”
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Another Twitter user said: “I don’t understand why we can now attend a footy game in NSW but not one of the most important peaceful protests in our history. #blacklivesmatteraustralia.”
Former Stop All Black Deaths in Custody protest organiser Raul Bassi will still march today despite a court order declaring the rally should not go ahead.
Mr Bassi was at pains to make it clear he was no longer organising the rally, which more than 30,000 people have expressed interest in attending, but he would attend in the capacity of a concerned citizen.
He said he could not stay silent about the 432 Indigenous deaths in custody since the findings of a royal commission into the issue were released in 1991.
“I have been involved in the Aboriginal struggle for too many years not to march,” Mr Bassi said.
“I am not asking anyone to come but I am not stopping anyone to come.
“We need to keep up the fight against Aboriginal deaths in custody and recognise Aboriginal pain and suffering.”
Mr Bassi said the court ruling against the rally was motivated by unsubstantiated political smears that protesters would have been violent with police.
The Aboriginal rights activist has previously organised protests denouncing Australia Day, which he calls “Invasion Day”, where tens of thousands of protesters marched peacefully down Sydney streets.
“We wanted to hold a rally that we could control, but they decided we couldn’t because of pressure from politicians who claimed there would be violence,” he said.
“The way we were going to run the rally, there was never going to be any violence.”
The protest organiser claims he had fruitful discussion with Sydney City Police all week about the terms of the rally, which were finally mutually agreed upon on Thursday night.
According to Mr Bassi, the only compromise rally organisers could not accommodate was a request to bring the march forward from 3pm to midday because Aboriginal elders from Kempsey and Newcastle had already booked coaches.
“I talk to the police, who I know well, and we negotiated all week,” he said.
“The Sydney City Police sent me their final terms on Thursday night and I sent an email back agreeing to them.
“The problem has never been with Sydney City Police, we were all in agreement with the terms of the rally.”
In response to concerns protesters could spread COVID-19, Mr Bassi said organisers had arranged for marshalls to hand out masks and hand sanitiser.
PREMIER UNDER PRESSURE
Last night’s Supreme Court ruling followed an about-face from an under-pressure Premier Gladys Berejiklian who on Thursday stopped short of telling protesters not to attend anti-racism rallies, instead simply urging them to be “COVID safe”.
The ruling means any protesters who show up will be subject to police fines for breaching COVID-19 orders.
Justice Des Fagan said the health consideration was the significant matter to be weighed against the right of assembly, citing an affidavit from NSW Chief Health Officer Kerry Chant expressing concern about the protests.
The dramatic Supreme Court challenge lasted for more than four hours after NSW Police Commissioner Mick Fuller sought an injunction on the grounds the rally would breach COVID-19 health orders.
Barrister Emmanuel Kerkyasharian, appearing on behalf of one of the rally’s organisers Raul Bassi, told the court it would be safer to allow the protest to go ahead with social-distancing measures in place because otherwise protesters could be corralled by police into smaller groups when being asked to move on.
But Justice Fagan said Australia’s social-distancing measures had placed the country in a better situation compared to other nations and that it was not a time to throw away such caution.
“People have given up their livelihoods, they’ve given up all their pursuits and pastimes … everybody has given up a lot in order of trying to defeat the disease,” the judge said.
MASS PROTEST CONCERNS
It came as NSW reached the celebrated milestone of having no COVID-19 patients in intensive care, following successive days where the only cases diagnosed were international travellers in hotel quarantine.
As of 8pm on Friday night, there were no more new cases of COVID-19 in NSW with a total of 3110 cases across the state.
Premier Gladys Berejiklian disputed that she had ever “green-lit” the protests, despite a day earlier having multiple opportunities to tell protesters not to attend and failing to do so.
Instead she said protesting was an “inherent right in democracy” and protesters needed to be “COVID-safe”.
Ms Berejiklian said it had become “abundantly clear” to her through conversations with Mr Fuller that “the protest would not be able to be managed within the health orders”.
It is unclear why this was not abundantly clear on Thursday, when protesters gave notice 5000 people could attend, lawyers for the group told the court last night.
Or on Thursday night, when The Daily Telegraph was asking questions about the protest plan, when there were already 16,000 people who had registered an interest in the protest online.
The court heard that if anyone believed the Commissioner had agreed to a gathering of 5000 people they had misunderstood him.
Treasurer Dominic Perrottet told 2GB’s Ben Fordham the “enormous sacrifices” made by Australians during the COVID-19 pandemic were the main reason why the protest “clearly shouldn’t go ahead”.
“You can’t defend the indefensible, it’s ridiculous,” Mr Perrottet said.
MPs even privately called it Ms Berejiklian’s “greyhound moment”, referring to former premier Mike Baird’s ill-fated greyhounds ban.
The Prime Minister made an impassioned plea for people not to attend the protests, saying: “For all of those Australians who couldn’t attend the funeral of a family member or couldn’t see a loved one in a nursing home or a veteran who couldn’t remember their fallen colleagues by attending a war memorial service on Anzac Day, I say to them don’t go.”
Former PM Tony Abbott joined the attack, saying he couldn’t understand “why on Earth” the Premier had given the green light to “make merry on the steps of Town Hall”.
Mr Fuller said there would be a strong police presence in Sydney’s CBD on Saturday, with thousands still expected to protest.
“Police hold serious concerns about thousands of people gathering together in close proximity in the current health environment, as our priority is always community safety,” he said.
“The NSW Supreme Court has upheld these concerns this (Friday) evening, and I strongly urge those considering attending to respect that decision.
“Police will have a strong presence (on Saturday) to ensure the law is obeyed.
“If people choose to disobey the Supreme Court ruling and attend the planned protest regardless, they need to be aware they are doing so unlawfully and police will respond accordingly.”
Police Minister David Elliott also unleashed a scathing attack on protesters, declaring them “certifiably insane” for gathering during a pandemic.
“Anyone who goes to a protest during a pandemic is certifiably insane, they are nuts,” he said.
“I have been up half the night talking to senior police taking legal advice but as the Premier said, there are things in society it’s virtually impossible to stop and the right to political freedom is one of them.”
* Additional reporting by Anna Caldwell, James O’Doherty and Joe Attanasio