NSW Supreme Court Declares Black Lives Matter Vigil Illegal
Ellie Stephenson reports.
Justice Desmond Fagan has ruled in favour of the NSW Police Commissioner to prevent tomorrow’s rally against Black deaths in custody and vigil for George Floyd from going ahead, declining to authorise the holding of the the public assembly. The event, which was organised in solidarity with protests over police brutality in the USA, was opposed by the police on the basis of public health concerns.
The approval for the vigil was called into question after the expected attendance rose to around 5000 people and the location of the event was changed. The case involved debate about whether the event had received sufficient notification of approval from the police to allow it to go ahead. Justice Fagan said, “I do not accept that what was exchanged in writing by email as described amounted to notification from the commissioner that he did not oppose the holding of the public assembly”. As a result, he did not believe that the Commissioner had provided support for the protest.
Over the course of the case, representatives of the NSW Police Commissioner called upon Dr Kerry Chant, the NSW Chief Health Officer, for expert testimony as to the health risks of holding a large protest during COVID-19. Dr Chant argued that, although community transmission is low in NSW, there was a risk that a large gathering could expose people to the coronavirus where they would not be otherwise. The submission referred to evidence from the Australian Health Protection Principal Committee which suggested that “contract tracing is made much more difficult in situations such as protests”. Representatives of the defendant, Mr Raul Bassi, an organiser of the protest, questioned the size of these risks given the significant efforts organisers had made to encourage social distancing amongst the attendees.
Nonetheless, Justice Fagan accepted the principle of “public health orders restricting gatherings and movements”, comparing the protests to other restricted events like “weddings, religious services”. Distribution of PPE like masks and hand sanitiser would not, according to Justice Fagan, outweigh the fact the social distancing law “applies to all citizens”. He identified the success of social distancing measures as a reason to continue to uphold them. He weighed this against the right to free expression and assembly, saying “the exercise of the fundamental right of assembly… is not taken away by the current public health order, it is deferred” and pointing to a number of other sacrifices the community has made to prevent the spread of COVID-19.
The organisers of the protest, with the support of Greens Member of the NSW Legislative Council David Shoebridge argued that it was not in the interest of public health to make the protest illegal. They claimed that people would take to the street regardless and that the protest would be safer if it was permitted to spread out in the streets and peacefully follow social distancing regulations. However, Justice Fagan did not accept this reasoning, saying in his judgement that he did not believe “great numbers of people would, so irresponsibly towards the health of their fellow citizens, gather in this manner”. He believed that people gathering would constitute “a defiance of a judgement that has been made by ministers in the government and the public health officials who advise them”. During the case, Justice Fagan insisted that police “ought to have unimpeded power to enforce the Public Health Act”, even if making the protest illegal would make it riskier.
This means that the vigil and protest cannot legally go ahead, exposing people who attend to potential clashes with police or arrest. In a context where anti-vax protests occurred around the country last weekend without a hitch, reportedly with thousands attending, it seems unlikely prospective protesters will be pleased with the ‘deferral’ of their right to assemble. Activists have criticised the decision, calling out the hypocrisy of the Government’s enforcement of social distancing laws.
Earlier today, the rally organisers and First Nations activists appeared at a press conference outside the Supreme Court, discussing the continuing need to fight for justice. Bundjalung woman Vanessa Turnbull-Roberts stated that the Government was “actually trying to stop the justice for the black lives that are still being murdered right now” and demanded more police face more “accountability” for the deaths of First Nations people.
Note: this article was corrected to say that Justice Fagan declined to authorise the holding of the public assembly, rather than authorising an injunction to stop the protest.