Black Lives Matter Sydney rally an unauthorised event, NSW Court of Appeal rules

A Black Lives Matter rally planned for Tuesday is an unauthorised public assembly, the NSW Court of Appeal ruled in a dramatic last-minute appeal.

Black Lives Matter protest organiser Padraic Gibson outside The Supreme Court in Sydney on Sunday. Picture: Adam Yip

A Black Lives Matter rally planned for Sydney on Tuesday is an unauthorised public assembly, the NSW Court of Appeal ruled on Monday, upholding a NSW Supreme Court decision a day earlier.

In a dramatic last-minute hearing, Chief Justice Tom Bathurst, Court of Appeal President Andrew Bell, and Justice Robert McFarlan, ordered that the assembly at Town Hall in the Sydney CBD — planned for at least 1000 people — was unauthorised, dismissing the protest organisers’ appeal.

The court dismissed an argument by barrister Dominic Toomey SC, who acted for the protest organisers with fellow barrister Felicity Graham, that the Supreme Court lacked jurisdiction to hear the police application for a prohibition order for the march.

Mr Toomey said NSW Police had failed to confer with rally organisers before taking them to court, citing an interview police Commissioner Mick Fuller gave to Sydney radio station 2GB in which he pledged to use the courts to block the demonstration.

NSW Police won an out-of-hours Supreme Court battle on Sunday to stop the rally from going ahead after justice Mark Ierace declined to approve the public assembly due to concerns over a potential second wave of COVID-19.

Chief Justice Tom Bathurst said reasons for the previous decision being upheld would be published next week.

Police had sought a prohibition order for the rally organised by the family of Aboriginal man David Dungay jnr, who died in custody in 2015 after he was held down by corrective officers while gasping “I can’t breathe”.

Outside court on Monday, rally organiser Paddy Gibson said the BLM protesters had scrapped plans to march from Town Hall to Parliament House after the court’s decision.

Instead, Mr Gibson said an estimated 500 people will attend a protest at The Domain while a petition would be presented to the NSW Director of Public Prosecutions to consider criminal charges against the prison guards who restrained Dungay jnr at Long Bay Jail.

“Racism is a pandemic,” Mr Gibson said. “It’s a pandemic that’s killing people and it’s a pandemic that cannot be solved by people self-isolating.”

“We haven’t won in the Supreme Court (but) we are calling on the police not to fine us, not to harass us when we gather if you stay in groups of 20 you’re not in breach of the covid regulations.”

Dungay jnr’s mother, Leetona, said the protest would still go ahead on Tuesday despite the ruling.

“We didn’t get the appeal, but we are still going to march, we are still going to rally,” Ms Dungay said.

“We are going to rally until they get charges and then I will stop rallying.”

An inquest last year into Dungay Jnr’s death did not recommend criminal charges after a coroner found the prison officers were not motivated by “malicious intent”.

In a judgment on Sunday, Supreme Court judge Mark Ierace told the court he had granted the prohibition order partly because NSW was on the “knife-edge” of an escalation in community transmission of COVID-19.

The order will mean protesters may face arrest and could be exposed to criminal charges if they are observed breaching public health orders on Tuesday.

Last week, Mr Fuller told The Australian BLM activists were “playing Russian roulette” with millions of lives by planning the protest.

Premier Gladys Berejiklian said anyone who defied coronavirus health orders in NSW could face a $1000 on-the-spot fine.

“Police don’t want to have to make arrests but they will if they have to keep the community safe. Get your point across in a different way, do not breach the health orders, do not breach the rulings of the court.”

Prime Minister Scott Morrison warned that anyone who protested in Sydney on Tuesday would be “breaking the law”.

Last week, BLM activists accused police of treating them unfairly by moving to block the rally before the movement’s leaders had even submitted a formal application.

In the hearing before the Supreme Court, lawyers for the protest organisers accused Mr Fuller of failing to “engage meaningfully” with protesters and making a pre-emptive decision to try to ban the demonstration.