Rushed ruling on Sydney Harbour Bridge march may not set precedent
One of the first things a student learns about at law school is the importance of precedence. As defined by the LexisNexis Concise Australian Legal Dictionary, precedent is “a judgment that is authority for later cases, with similar facts; a case that is authority for the legal principle contained in its decision”.
Justice Belinda Rigg of the NSW Supreme Court happened to be the common law duty judge when the case of Commissioner of Police (NSWPF) v Josh Lees came before her on the afternoon of Friday, August 1.
The NSW Commissioner of Police had sought an order pursuant to section 25 of the Summary Offences Act 1988 NSW prohibiting the holding of a public assembly, namely a March for Humanity over the Sydney Harbour Bridge on Sunday, August 3.
The evidence and submissions concluded by 5pm and Justice Rigg handed down her judgment at 10am on Saturday, August 2. As is well known, Justice Rigg found in law for Lees and the Palestine Action Group and refused the NSW Police application. There was no time for an appeal to the NSW Court of Appeal.
The march took place last Sunday and caused enormous disruption around central Sydney. In the judgment, various figures were cited as likely marchers, from 10,000 (the original figure provided by Lees) to 50,000. NSW Police estimate that 90,000 took part. Before the event, the police were concerned that the short notice to prepare for the event on a bridge that is part of an arterial road would make the march dangerous. After the event, authorities regarded it as fortunate indeed that there were no serious injuries due to any crowd crush or external emergency.
The march organised by Lees and the PAG was a domestic political success but unlikely to change events in the Middle East in general or the Israel-Hamas war in particular. In fact, it’s the height of Lees’ success as a political agitator.
In her judgment, Justice Rigg described Lees as a 43-year-old who “has been involved in protest activism since 2003”.
He is attached to the socialist publication Red Flag, published by Socialist Alternative, which describes itself as “Australia’s largest Marxist organisation”. Some call them Trotskyites.
It is true that the marchers, for the most part, were orderly. But also unpleasant.
Former Labor premier Bob Carr, a secularist and historically no fan of Trotskyites, was photographed standing in front of a large photograph of Ali Hosseini Khamenei, the brutal spiritual leader of the theocracy that is Iran.
Justice Rigg commented that “Mr Lees’ unchallenged evidence is that the (PAG) protests have always occurred in a welcoming, inclusive and family-friendly environment”. Well, this will not be possible to say after August 3.
As Sky News presenter Sharri Markson demonstrated on her Sharri program this week, flags resembling al-Qa’ida and Islamic State symbols were flown on the Harbour Bridge. Some demonstrators chanted “Death, death to the IDF (Israel Defence Forces)”.
A woman held an image of the Israeli flag in the middle of which was depicted a Nazi swastika. A man wore a coat emblazoned with the “Death, death to the IDF” chant along with the upturned red triangle of the terrorist Hamas group. The PAG had 100 marshals to control the crowd. But no one seemed to do anything to constrain the activities of the apparent Islamists who were marching.
Nor did the middle-class radicals in the procession make a mention of Hamas’s hostages held in tunnels in Gaza.
Sure, the crowd was restrained. But it was intimidating, especially for Jewish Australians who have been experiencing, especially in Melbourne and Sydney, potentially murderous acts of anti-Semitism unparalleled in Australia.
And then there is Lees, who was treated with considerable respect in court. On August 6, he was interviewed by Michael McLaren on Sydney Radio 2GB. The professed radical sounded like the most evasive politician imaginable.
McLaren commented: “I’m interested to know if you view Hamas as a terrorist organisation or a group of freedom fighters?”
This was the response: “Well, look, I mean, I don’t particularly want this story to be about me.”
When McLaren persisted, Lees responded, “Yeah, well, what we’ve said is that actually what’s happening in Gaza is not about Hamas – so that’s why it’s a kind of distraction to just focus on them.”
What a load of absolute tosh. Hamas began the current hostilities on October 7, 2023, when it invaded southern Israel and proceeded to kill soldiers, murder men, women and children, rape women and take hostages. And Lees reckons the Israel-Hamas war has nothing to do with Hamas.
Lees says the March for Humanity was not about him. And the Israel-Hamas war is not about Hamas. He describes Israel as a “terrorist state” and not democratic. Despite the fact that the more than 20 per cent of Israelis who are not Jewish enjoy democratic rights in Israel – unknown in Arab countries.
In answer to a question about whether he supported a two-state (Israel existing alongside a Palestinian state) or a one-state solution, Lees replied: “I mean, my personal view is that there should be a democratic, secular state in that territory, in which all Palestinians and Jews and everyone else can live in an equal and democratic society.”
Lees knows the creation of a secular state in the area of modern-day Israel entails the end of the Jewish state. This would effectively drive Jewish Israelis and others who do not want to live (and die) next to totalitarian Hamas to exit Israel from the Jordan River to the Mediterranean Sea.
Since the March for Humanity was organised by Lees’ PAG, it’s reasonable to assume that, knowingly or unknowingly (in a “useful fools” way), those who marched stood for the elimination of Israel.
Fortunately, Justice Rigg’s decision may not amount to a precedent with respect to the Sydney Harbour Bridge.
As Chris Merritt pointed out in these pages on Friday, the court’s attention was not drawn to Part 4AF of the NSW Crimes Act, which imposes criminal penalties under section 144G for obstructing major bridges. That’s the problem when justice is rushed.
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