A 69-year-old woman who had four vertebrae broken after a police officer allegedly pushed her down “violently” at a Sydney protest against Isaac Herzog is planning to sue the state of New South Wales for personal injury, her lawyer says.
Lawyer Peter O’Brien says Jann Alhafny – who remains in hospital – is one of at least seven protesters from Monday’s demonstration against the Israeli president who have sought advice over alleged police brutality.
But the path to legal redress is bumpier than usual – due to an obscure section of a 2009 piece of legislation that allows the government to grant police additional powers for “major events”.
Section 62 suggests “compensation is not payable” due to the actions of police officers during major events.
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And Chris Minns’s government designated Herzog’s four-day visit just that.
The police listed itself as the “promoter” of the visit, a supreme court challenge against the declaration heard on Monday. The protesters were referred to as “spectators”.
The Palestine Action Group’s barrister, Felicity Graham, argued in court, unsuccessfully, that this showed the Major Events Act had been improperly used for the Israeli president’s visit. It was a “square peg being sought to be shoved into a round hole”, Graham said.
O’Brien says he’ll challenge the designation again as part of Alhafny’s case.
“We think that legislation that quarantines a state authority from any sort of liability associated with criminal wrongdoing is inherently unlawful,” he says.
‘We’ll be coordinating a legal response’
Monday’s rally in Sydney turned violent after some protesters attempted to march to state parliament in defiance of another anti-protest law that was rushed through after December’s Bondi beach massacre that killed 15 people at a Hanukah festival.
After negotiations between protesters and police broke down, officers moved to disperse the crowd using pepper spray and the controversial tactic of kettling.
Alhafny has said that after she was allegedly pushed, and while she was on the ground, other people were pushed on top of her. She feared there could be a stampede or that she might suffocate.
“[The officer] grabbed one arm, and he yanked me up on to my feet, like really severely, and that was excruciating,” she told Guardian Australia earlier this week.
A NSW police spokesperson said the force was not aware of the incident. They said investigators were continuing to review body camera and social media footage of the protest.
O’Brien says: “We’ll be pursuing to the full extent the compensation available.” Civil claims against police can range from $5,000 to $100,000.
Separately, Guardian Australia has confirmed a man in a viral video shared by Greens senator David Shoebridge on Instagram has also sought legal advice. The man, who’s been referred to as “white shirt man”, is punched multiple times by multiple officers, the video suggests.
Another protester who has sought legal advice is Ali Al-Lami. He alleges he was called a “brown cunt” by an officer when he was arrested and that an officer punched him in the side of the head. He was handcuffed but released without charge.
Kefah Maradweh’s 16-year-old son, Nedal, was allegedly pushed to the ground, kicked and restrained by police before being released without charge.
She plans to make a complaint to the Law Enforcement Corruption Commission (Lecc), which on Friday announced it would investigate “incidents of alleged misconduct on the part of officers”.
One of the Muslim men dragged away from their evening prayer by police during Monday’s protest has sought legal advice, too. His solicitor, Nick Hanna, says the man, who does not want to be identified, was injured. He is considering a civil claim against the police.
The NSW police commissioner, Mal Lanyon, has apologised only “for any offence that may have been taken” after officers dragged the men.
The prime minister, Anthony Albanese, has told the Sydney Morning Herald “I’m very empathetic about the hurt that’s being felt by the Muslim community of prayers being disrupted”.
Hanna and other lawyers have arranged for other alleged victims and witnesses to gather at a legal practice this weekend. “We’ll be coordinating a legal response and gathering evidence,” Hanna says.
Lanyon has said all incidents brought to his attention would be internally investigated. He and Minns stressed that incidents need to be viewed in context.
‘The Act hasn’t really been tested’
Section 62 of the Major Events Act restricts bids for compensation – but not entirely.
The section only covers acts done in “good faith” and does not apply to personal injury claims. O’Brien believes the latter carve-out applies to Alhafny’s case.
The Palestine Action Group’s failed challenge to the major event declaration was based on it being an improper attempt to curtail protests.
The government insisted it had been invoked for security purposes and, minutes before the protest at town hall began, Justice Robertson Wright sided with the police. The judge is yet to publish his reasons.
A ministerial briefing tendered to the court shows police mentioned section 62 when providing advice about declaring Herzog’s visit a major event. Minns, the premier, has rejected any suggestion that the government enacted the special powers to curtail protesters’ legal options.
Hanna, a lawyer who acted on behalf of PAG alongside Graham, said the group was considering appealing Wright’s ruling.
O’Brien plans to challenge the declaration when litigating Alhafny’s case.
Normally, people could launch a civil action on the grounds of assault, battery, false imprisonment or intimidation – without any personal injury.
O’Brien thinks section 62 makes that almost impossible in relation to Monday’s policing of the Herzog protest.
However, Sam Lee, a senior solicitor at the Redfern Legal Centre, thinks there is room to move, given the exceptions.
“The Act hasn’t really been tested in this way,” she says.
Lee says it is up to the court to determine what constitutes “good faith”. In each case, the court would ask how a reasonable person in the circumstances of the police officer would have reacted, she says. What was the behaviour of the wider crowd? Was the person carrying a weapon? What force, if any, did they use against the police?
“For example, if we take a situation where a protester moved their fist towards a police officer’s head, and the police officer punched that person in response to protect themselves, then there would be no civil liability issue for the police,” Lee says.
When it comes to criminal charges, Lee suggests that prosecuting police officers who may have used excessive force would be “quite a hurdle to get over”.
Associate Prof Dr Vicki Sentas, an expert on policing law at UNSW, says the Office of the Director of Public Prosecutions has to decide to lay a charge. The professional standards unit within NSW police can also refer matters if they think a crime has been committed.
Sentas notes “the Lecc (Law Enforcement Conduct Commission) can’t charge the police, but they can make a recommendation”.
The academic says there is “no general rule that this violence is reasonable and that violence is unreasonable”. Again, the court decides, according to the circumstances of each individual case.
Lee argues the government’s use of the major events declaration for Herzog’s visit – under legislation for events of a “sporting, cultural or other nature” – was unusual. The Act says a protest cannot be declared a major event.
“It was the minister for tourism [Stephen Kamper] that approved it … not the police minister,” the Redfern lawyer notes of Herzog’s visit.
Police have said some protesters would be charged with failing to comply with move- on directions on Monday. Sentas says the combination of the major events powers and the post-Bondi public assembly restriction declaration (Pard) means police had “very broad discretion” to move people on.
So it would be “very difficult to legally contest … move-on directions”.
Minns and Lanyon have this week urged the public not to draw conclusions from short video clips shared on social media.
But in one instance, at least, Sentas says the broader context may not help.
Some police actions outside town hall look “excessive and unreasonable and disproportionate, to me, from the publicly available evidence”.
