Top court blocks pro-Palestine Opera House protest

The state’s top court has blocked a planned pro-Palestine march that was expected to result in tens of thousands of people descending on the Opera House forecourt on Sunday, after police warned the proposal had “disaster written all over it”.

In an urgent decision on Thursday, the Court of Appeal issued a prohibition order over the proposed march following an application by NSW Police to halt the rally, and delivered a warning that flouting the order might expose participants to punishment for contempt of court.

In co-operation with police, protesters are now expected to march on Sunday from Hyde Park in the Sydney CBD along George Street to Belmore Park near Central Station.

There would be a “visible police presence” at the Opera House to ensure compliance with the court’s order, Assistant Commissioner Peter McKenna said. The Opera House would also have its own security in place.

The lead organiser of the protest, the Palestine Action Group, said it was “disappointed in this outcome” but “we have an agreed march route through the heart of the city”.

‘Respect the umpire’s call’

Premier Chris Minns welcomed the court’s decision, and warned that demonstrators who defied the order by gathering at the Opera House could face “the full force of the law”.

“If you litigate it in front of the Court of Appeal … and they make a decision, then you’ve got to respect the umpire’s call,” Minns said.

“The decision of the police and the government to [oppose the planned protest] … on public safety grounds has been validated by the decision.”

Minns backed protest organisers to deliver a safe demonstration with an alternative route, noting that the “vast majority” of pro-Palestine marches over the past two years have occurred “without incident”.

The court said in its decision that the “public safety risk to participants and other members of the public is extreme” in light of the likely number of protesters and the “capacity and physical constraints” of the Opera House forecourt.

It would be “irresponsible to allow the public assembly to proceed, irrespective of the political significance of the event”, Chief Justice Andrew Bell and Justices Ian Harrison and Stephen Free said.

The judges said there was a “real risk” organisers’ estimate of 40,000 protesters “will be exceeded, particularly having regard to the timing of the march, on approximately the second anniversary of the bombing of Gaza, the iconic nature of the proposed destination … and the heightened attention” the march would receive as a result of the court case.

The prohibition order would expose protesters to potential criminal sanctions if they forged ahead with the march to the Opera House.

‘[The] public safety risk to participants and other members of the public is extreme.’

NSW Court of Appeal

McKenna said police sought the prohibition order because of concerns about a crowd crush at the Opera House. He told the court on Wednesday the plan had “disaster written all over it”, and between 40,000 to 100,000 people congregating at the site was “impractical”.

Contempt warning

The court warned in its decision that anyone who participated in a rally while knowing it was covered by a prohibition order might be in contempt of court.

It appears to mark a significant departure from previous decisions of single judges of the NSW Supreme Court, including Justice Belinda Rigg earlier this year. Those decisions had been regarded as distinguishing a prohibition order from an outright ban on protesting.

Lawyers for the protest organisers, Palestine Action Group and Jews Against the Occupation, had argued a prohibition order was not a ban but simply removed a relatively narrow immunity from criminal liability for acts such as blocking traffic, which is given to protesters in authorised marches.

In the protest organisers’ view, this would mean it was not a contempt of court to participate in a march because the prohibition order did not prevent that.

In her decision in August refusing a police application for a prohibition order over the historic pro-Palestine march across the Sydney Harbour Bridge, Rigg said the effect of a prohibition order “is not that the assembly would be prevented from taking place” but that “the immunity … would not apply”.

Banning order

But the Court of Appeal said in its unanimous decision on Thursday that a prohibition order “operates to do precisely what the terms of the order suggest, namely to prohibit the holding of the proposed public assembly”.

It said that a “breach of that order may render a person in contempt of court” if they had knowledge of the order, and this might extend in some cases “to persons who were not parties to the proceedings in which the order was made”.

“It would be highly incongruous for the legislature to empower the court to make an order ‘prohibiting’ the holding of a public assembly, if the terms of that order did not accurately reflect the legal consequence of the order,” the court said.

Solicitor Nick Hanna, acting for the protest organisers, said outside court that “many, many groups will have an interest in seeking to take that to the High Court” to challenge those findings.

He said the decision had “very important ramifications for the right to protest in Australia”.

“It would be understandable for many Australians to be very concerned about that aspect of the judgment,” Hanna said.

The court did not deal with separate legal questions about Opera House by-laws banning protests at the site because it was not necessary.

Timing of protest

The original protest plan stoked outrage among sections of the Jewish community because of its timing within days of 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.

The proposed route was also regarded as inflammatory because a pro-Palestine protest outside the Opera House on October 9, 2023, sparked months of controversy.

Israel’s invasion of Gaza following October 7 has resulted in the deaths of more than 67,000 Palestinians, and was labelled a genocide in a landmark United Nations report last month.

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