A court challenge to the New South Wales government’s use of special powers during the visit of Israeli president, Isaac Herzog, will be decided at an urgent hearing on Monday, as police continue to urge protesters planning to march through Sydney’s CBD to take an alternative route.
At a hastily convened NSW supreme court hearing on Sunday evening, Justice Natalie Adams ruled a challenge by the Palestine Action Group to “major event” powers invoked during the visit would be heard before a planned march from Sydney town hall to state parliament on Monday night. Herzog was expected to arrive on Sunday evening and depart on 12 February.
“If [the court] does not … hear it not only within four days, but prior to 5.30pm tomorrow, then the whole purpose of bringing the proceedings would be undermined,” she said.
The group plans to march in a breach of the public assembly restriction declaration extended by police on Tuesday.
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The extension prevents the authorisation of protests under the form 1 system, effectively banning marches in designated areas without the risk of arrest. The current designated area includes the town hall and takes in the northern part of the CBD and the eastern suburbs, but excludes Hyde Park.
The NSW government on Saturday also invoked the state’s “major event” legislation over the same area, granting police additional powers to move people on, close specific locations and issue orders to prevent disruption or risks to public safety. Police may search anyone inside the area or as a condition of entry, and anyone who fails to comply with directions may face penalties, including fines of up to $5,500.
At Sunday’s hearing, the group’s barrister, Mark Robinson SC, said it would challenge the use of the powers on the basis that Herzog’s visit was not an appropriate event under the legislation, that the government’s invocation of the powers was disproportionate and vague, and the use of the regulation to shut down protests went against its purpose.
Robinson submitted that the challenge be heard before midnight on Sunday, when the special powers came into effect, because police could potentially construct barricades preventing people from gathering at the town hall on Monday.
“That’s something that happened in the only possibly comparative occurrence when this kind of order was made … [at] the Asean summit [in 2018],” he said.
The barrister for the NSW government, Hannah Ryan, argued that even if the Palestine Action Group successfully challenged the special powers, they would not be allowed to march under the existing public assembly restriction declaration.
Adams did not rule on this issue, but noting that the Palestine Action Group’s submissions had only been received that afternoon, ruling the matter be heard before Justice Robertson Wright at 10am on Monday, but also giving the government leave to apply for a hearing later in the morning.
“It’s finding the median between giving the defendant sufficient time to get the material … but also giving Justice Wright time to consider it with the time pressure on the other side.”
The acting assistant commissioner of New South Wales police, Paul Dunstan, told reporters on Sunday negotiations were continuing over the location of Monday night’s march.
Dunstan urged the group to relocate to Hyde Park and march to Belmore Park instead, saying it would “safely facilitate a peaceful protest on the streets of Sydney”.
The NSW premier, Chris Minns, said the alternate route “would have dramatically lowered tensions in the city”.
“It would have been a clear way of demonstrating that there’s protests that can take place … but also a respectful way of ensuring that those who are in the city, who are mourning after the worst terrorism event in the country’s history, won’t be subject to a confrontation on city streets,” he said at a separate press conference on Sunday.
A separate legal challenge by the group against NSW’s anti-protest laws, passed after the Bondi attack is also ongoing.
When asked about the possible challenge, Dunstan said it was a matter for the government, not the police.
He said more than 3,000 police officers would be deployed across Sydney during Herzog’s visit, with people to expect motorcades, clearway zones, and fencing and barriers to be up in the CBD over the next few days.
“With the tensions associated with this visit, you will see additional numbers, but people should feel confident to go about their business over the next few days as per normal,” Dunstan said.
He also advised that those planning to attend the city from 5.30pm onwards should be aware of the significant police operation and potential protest activity.
“We do not want conflict. We want to ensure that this is conducted in a peaceful and safe manner, and I’m confident that we can achieve that by working together with the Palestinian Action Group,” Dunstan said.
Minns urged “respect and calm as we get through the next four days”.
The prime minister, Anthony Albanese, invited Herzog after the 14 December antisemitic terror attack at Bondi, saying his visit was intended to foster a greater sense of unity. Major Jewish organisations and federal and state governments have welcomed Herzog’s visit as a moment of profound significance.
Palestinian Australian Raneem Emad, who plans to protest against Herzog’s visit on Monday, said the visit felt “like a slap in the face”.
“So many of us have lost tens, if not dozens, of family members in Gaza, and no one understands that feeling like another Palestinian mother or someone else who has unfortunately had to face such traumatic loss,” she said.
