The Palestine Action Group has lost its legal challenge against sweeping powers handed to police by the Minns government for the duration of Israeli president Isaac Herzog’s visit.
This means that police, under the state “major event” legislation – which is typically used for sporting events – may search anyone inside sections of the CBD and eastern suburbs until Thursday. Police will also have the power to move people on, close specific locations and issue orders to prevent disruption or risks to public safety.
Anyone who fails to comply with directions may face penalties, including fines of up to $5,500.
The group faced the state in the supreme court in Sydney on Monday before Justice Robertson Wright after launching an urgent challenge to the powers before a protest planned at Sydney’s town hall on Monday evening.
The protesters could still breach another anti-protest restriction passed after the Bondi terror attack by marching to state parliament on Monday evening. Known as the public assembly restriction declaration, it gives police the full suite of their move-on powers under the Summary Offences Act for offences such as obstructing traffic.
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On Saturday, the Minns government expanded police powers further by declaring Herzog’s visit a major event, prompting the group to lodge a challenge against the decision on Sunday.
Barrister Felicity Graham, who acted on behalf of the group alongside Peter Lange SC, had argued that the government had improperly used the legislation as a “backdoor way” to curtail protests.
In court, the government rejected the suggestion that the powers were improperly invoked, arguing they were needed to secure the safety of the Israeli president and the community.
Shortly before the judgment was handed down, Graham said a government briefing showed the police had listed itself as the “promoter” of Herzog’s visit and protesters were referred to as “spectators”. She said this further proved her argument that the act had been improperly used, arguing it was a “square peg being sought to shove into a round hole”.
Graham, in arguing the government had improperly used the act, had pointed to comments the government made on Saturday when announcing the declaration that “we cannot allow a situation where mourners, visitors and protesters are brought into close proximity in a way that risks conflict, violence or public disorder”.
She noted the sports minister, Steve Kamper, said confrontation between protesters and officials could make world news and affect the reputation of the state and Australia.
“One might say the quiet part has been said out loud,” Graham said.
“This is about stopping legitimate political expression in the public square against a controversial visiting head of state, from a country that is before the international court of justice on a charge of genocide.”
Wright questioned this. The judge suggested the motivation of the government was to keep opposing groups separated in the context of security risks after the Bondi terror attack, when 15 people were murdered during a Hanukah celebration.
Graham countered: “In terms of where the president expects to be, it’s difficult to match that up then with the breadth of the major event declaration.”
“Just as the act prohibits the declaration of a protest as a major event, we say the major event can’t be declared in such broad terms, lacking in such specificity, as to only describe a four-day period and a very large geographical area as a backdoor way of stopping protests during that time in the general location.”
Lange argued that the extent of the powers was unreasonable in this instance. He said the declaration gave police the power to ask any person living in the eastern suburbs over the next four days to open their bag, container, or “any other thing” in their possession.
Brendan Lim SC, on behalf of the government, argued that what constituted an “event” in the legislation was not defined – and therefore should be given a “broad meaning”.
“It is the maintenance of security and safety of the president, dignitaries and the community generally, in light of the national terrorism threat and heightened community tensions, and the need to safely manage potential large crowds,” Lim told the court.
“That is not a purpose of suppressing protest, it is a purpose of securing safety.”
The government’s barrister said that police carving out Hyde Park from the declaration showed that suppressing protests was not the point – despite earlier arguments from Graham that this was a distraction.
Wright was expected to make a decision on whether the government appropriately used its powers under the state’s major events legislation at about 4pm. The protest against the Israeli president was due to start at town hall at about 5.30pm.
The group planned to march in a breach of another protest restriction: a public assembly restriction declaration, which was extended by police last Tuesday.
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.
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