Coronavirus: Judge concerned by Mick Fuller’s ‘pre-emptive BLM ban decision’

BLM activists have accused NSW police of trying to block a rally before the movement’s leaders had even submitted a ­formal application.

Black Lives Matter activists outside the NSW Supreme Court in Sydney on Thursday. Picture: Britta Campion

Black Lives Matters activists have accused NSW police of treating them unfairly by moving to block a rally from going ahead in Sydney next week before the movement’s leaders had even submitted a ­formal application.

In a high-stakes hearing in the NSW Supreme Court, lawyers for rally organiser Padraic Gibson accused the state’s police commissioner, Mick Fuller, of failing to “engage meaningfully” with ­protesters and making a pre-emptive decision to try to ban the ­demonstration.

Mr Gibson is fighting alongside Paul Silva, the nephew of David Dungay Jr, an Aboriginal man who died in custody in 2015, to hold a 1000-strong Black Lives Matter protest at Sydney’s Town Hall on Tuesday.

Mr Fuller earlier this week told a number of media outlets — including The Australian — that he had serious concerns about any mass gatherings being allowed to go ahead in the city, given the COVID-19 pandemic, particularly after an earlier demonstration in Melbourne was linked to a coronavirus outbreak in the city’s public housing towers.

He said he would fight to have all protests and mass gatherings banned in the courts in a bid to safeguard the health of the state’s residents as well as its economy.

Referencing interviews given on Sky News and 2GB, defence barrister Felicity Graham said Mr Fuller had indicated his “intention” to seek a prohibition order to stop BLM activists from protesting before the matter had been formally broached with the police.

She said Mr Gibson emailed “written representations” about the rally to NSW police three hours after Mr Fuller appeared on talkback radio saying he would move to have the rally banned

“The decision to go to court had already been made. Indeed, he referred to the event as crazy, or adopted that characterisation,” she said. “It’s clear the commissioner formed the view to oppose the holding of the public assembly and the decision to go to court before the representations had been received.”

Judge Mark Ierace said he was “concerned” Mr Fuller had failed “genuine consideration” to Mr Gibson’s application to protest, which included a COVID-19 ­safety plan.

Mr Gibson, who submitted the intention to hold a rally to police on behalf of Dungay Jr’s family, said the application created certain rights to protest “even in a pandemic”.

Dungay Jr died in Long Bay Jail in December 2015 at the age of 26, shortly after a team of prison officers had stormed his cell in the prison’s mental health ward and administered him a sedative.

The case comes after NSW recorded 19 new cases of COVID-19 in the 24 hours to 8pm on Wednesday, including three cases with no known links to existing outbreaks.

The hearing continues.