‘Significant public importance’: Fight over Opera House protest heads to state’s top court

NSW’s top court will hold an urgent hearing in the latest test case on protest rights as police seek an order blocking a planned pro-Palestine march descending on the Sydney Opera House forecourt on Sunday.

NSW Police lodged an application last week in the Supreme Court, seeking a prohibition order over the protest. Jewish leaders back the police in opposing the rally and will seek to be heard in court.

Supreme Court Justice Ian Harrison made orders on Tuesday paving the way for the state’s top court, the Court of Appeal, to hear the application on Wednesday.

The court will examine the implied freedom of political communication in the Commonwealth Constitution and Sydney Opera House by-laws that make it an offence to participate in public demonstrations on the premises.

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 deadly Hamas attack on Israel on October 7, 2023.

A small, separate group of demonstrators gathered at Bankstown on Tuesday evening, with Sheikh Ibrahim Dadoun telling the crowd Zionist organisations would be placed onto “the terror watch list”.

Sydney’s Jewish community “has experienced everything from the terrifying to the absurd” in the two years since Hamas’ attack, Executive Council of Australian Jewry co-chief executive Alex Ryvchin said on Tuesday.

“They [the protesters] will shred what little harmony remains in society,” he said.“We support the right of peaceful protest, but every right has its bounds and I think that’s been thoroughly tested by these activists.”

Sydney solicitor Nick Hanna, acting for the Opera House protest organisers from the Palestine Action Group, said outside court a victory for police in the Court of Appeal would have wider ramifications for protests.

PAG organiser Damian Ridgwell said: “We are going to be arguing that it is unconstitutional to ban demonstrations from taking place on the forecourt of the Opera House.”

He said they would also be introducing evidence from human rights lawyer Chris Sidoti that Israel was carrying out a genocide.

Despite its name, a prohibition order would not result in the protest being banned outright, but it would expose protesters to a wider range of potential criminal sanctions, including for obstructing traffic.

‘We’re going to be introducing evidence ... that Israel is carrying out a genocide.’

Damian Ridgwell, Palestine Action Group

Sydney barrister James Emmett, SC, acting for NSW Police, asked the court to make an order on Tuesday removing the matter from the Supreme Court and sending it to the Court of Appeal, in light of the urgency of the hearing and the legal arguments involved. This was not opposed by PAG.

NSW Police are seeking a court declaration that protesters in authorised public assemblies do not have protections against potential liability for offences under the Opera House by-laws.

This would mean participants could be charged with those offences even if the court declined to make a prohibition order.

In response, PAG is seeking a declaration that the by-laws’ ban on protests and related activities, such as displaying posters and operating loudspeakers, is invalid because it falls foul of the implied freedom of political communication.

Alternatively, they want the court to find the by-laws don’t apply to conduct amounting to political communication.

Harrison directed the NSW Jewish Board of Deputies to file written submissions before Wednesday’s hearing on their application to intervene in proceedings to make submissions opposing the rally.

In emphasising the urgency of the hearing, Harrison said: “You’d have to live in a vacuum not to be aware of the significant public importance of these proceedings to all members of the community.”

NSW Police met on Friday with protest organisers, who submitted a formal notice to hold the march through the CBD to the Opera House on Sunday to “mark two years of genocide” of the Palestinian people following the Hamas attack on Israel.

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.

Premier Chris Minns criticised the decision to hold the separate pro-Palestine demonstration in western Sydney on Tuesday evening, saying it was “shockingly insensitive” on the two-year anniversary of the Hamas massacre that killed 1200 people and in which another 250 were taken hostage.

The “Glory to our Martyrs” demonstration in Bankstown, organised by Stand For Palestine Australia, attracted a crowd of several hundred men, women and children.

“Your gathering today, you being here today, are a thorn in the throat of Zionist sympathisers,” speaker Sheikh Ibrahim Dadoun said.

Dadoun said “when Palestine is occupied, Zionism is on its last legs” and that one day Zionist organisations would be placed onto “the terror watch list”.

Another speaker delivered a spoken word poem focusing on Gazan victims of the conflict. A third spoke about the flotilla of ships carrying aid for Gaza that was intercepted by the Israeli Defence Force last week.

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.

Earlier on Tuesday, Ryvchin said the ECAJ opposed the Tuesday night protest.

“There will be a gathering to honour murderers, rapists and abductors as martyrs … and to incite yet more hatred against our community.”

In a decision in August, Supreme Court Justice Belinda Rigg rejected a police application for a prohibition order over the pro-Palestine rally across the Sydney Harbour Bridge that drew a historic crowd.

Rigg said the “extensive powers available to police whether the march is authorised or not is important”. Those powers include being able to issue move on orders in some circumstances.

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