‘Disaster written all over it’: Police urge court to block Opera House protest

A planned pro-Palestine march that would result in tens of thousands of people descending on the Opera House forecourt on Sunday has “disaster written all over it”, NSW Police told the state’s top court as it seeks to block the rally.

The Court of Appeal held an urgent hearing on Wednesday in a test case on protest rights as police seek to halt the march from the Sydney CBD to the Opera House. It will deliver its decision on Thursday morning.

Assistant Police Commissioner Peter McKenna told the court he had “significant concerns” about “ingress and egress” from the Opera House forecourt.

“It has disaster written all over it. We are not anti-protest. All the altruism in the world doesn’t assist when you have a physical situation where we believe numbers are far too excessive to keep people safe.”

He said 40,000 to 100,000 people congregating at the site was “impractical”.

Speaking at a press conference on Wednesday, Premier Chris Minns said police had made “some very … strong and direct arguments in relation to public safety”.

‘Nobody would want a Hillsborough-style tragedy occurring.’

Chief Justice Andrew Bell

“It’s a narrow peninsula at the Opera House. We don’t know how many people are expected, but it’ll be in the thousands,” Minns said.

“We don’t want to have a confrontation with police or other protesters or a crowd crush.”

NSW Police are seeking a prohibition order over the protest, which would expose participants to potential criminal sanctions for specific activities, such as for blocking traffic. Protesters have limited immunities from liability for such offences if a march is authorised.

Chief Justice Andrew Bell, presiding over the hearing with Justices Ian Harrison and Stephen Free, said he was concerned organisers had not contacted the Opera House or nearby Royal Botanic Garden about the plan.

“Even 40,000 is between five and six times the practical capacity of the forecourt,” Bell said.

In a reference to a fatal crowd crush at a football match in England in 1989, the chief justice said: “Nobody would want a Hillsborough-style tragedy occurring.”

Contempt risk

Bell suggested it would also be a contempt of court for a protester to participate if they knew a prohibition order had been made.

Lawyers for the protest organisers disputed this, arguing that a prohibition order was not a ban on protesting but simply removed the limited immunities available to participants in authorised protests.

The court is expected to resolve this question.

Genocide finding

Barrister Felicity Graham, acting for organisers from the Palestine Action Group and Jews Against the Occupation, urged the court to make a finding “that a genocide is occurring on the Gaza Strip”, or that organisers had a “reasonable basis” for believing a genocide was occurring.

Graham said this was a factor of “overwhelming significance” when the court was considering whether to make a prohibition order because it was relevant to the urgency of the protest when “every day means more people are being killed”.

James Emmett, SC, acting for NSW Police, said that “the court cannot properly or indeed fairly make that finding”. He said police accepted the organisers had a genuine belief that a genocide was occurring.

Timing of protest

The planned protest has stoked outrage among sections of the Jewish community because it would be held days after the two-year anniversary of the Hamas attack on Israel on October 7, 2023, in which 1200 people were killed and a further 250 were taken hostage.

A pro-Palestine protest outside the Opera House on October 9, 2023, sparked months of controversy. The Minns government had lit the building’s iconic sails in the colours of Israel’s flag.

Israel’s invasion of Gaza following October 7 has resulted in the deaths of more than 60,000 Palestinians, and was labelled a genocide in a landmark United Nations report last month.

The proposed protest follows a historic pro-Palestine march across the Sydney Harbour Bridge in August and two years of rolling protests in the CBD. A police application for a prohibition order over the Harbour Bridge rally was knocked back by the Supreme Court.

The NSW Jewish Board of Deputies, which is also representing the views of the Executive Council of Australian Jewry, made submissions opposing the rally.

In an affidavit filed in court, ECAJ’s head of legal, Simone Abel, said the march would take place “within days of the two-year anniversary of the Hamas terror attacks … in which the largest number of Jews were murdered in a single day since the Holocaust”.

The Opera House was “considered within the Jewish community to be a provocative destination”, she said.

Protest ban in Opera House by-laws

The court has also been asked to decide whether the limited range of immunities from criminal sanction available to participants in an “authorised public assembly” extends to offences in Opera House by-laws banning public demonstrations at the site.

The march would remain authorised if the court does not make the prohibition order.

NSW Police wants the court to find that protesters may still be charged with offences under the Opera House by-laws even if there is no prohibition order.

Political communication

But the protest organisers argue the by-laws’ ban on protests at the Opera House is either invalid because it falls foul of the implied freedom of political communication in the Commonwealth Constitution, or conduct amounting to political communication is not captured by the ban.

Supporters in court

Trish Burt was among a handful of pro-Palestine demonstrators in court to observe the hearing, and had her “fingers crossed” they would be given the green light to protest at the Opera House, a “national icon”.

“I’m here to support the Palestinian cause … I just can’t stay silent,” said Burt, who praised the conduct of police at protests over the past two years.

“There are people in their 70s, in their 80s [at the protests], there are so many people with children in strollers or holding children’s hands. We’ve been peaceful the whole time, that’s the purpose of these rallies.”

Another demonstrator, Jacqui, said marches on national landmarks were vital “when an issue is that important”, even if it causes “some of us to be inconvenienced”.

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