Supreme Court rules to stop Saturday protest
Supreme Court Judge Desmond Fagan has decided in favour of the NSW Police in their bid to stop a planned Black Lives Matter protest tomorrow.
Justice Fagan said the protest would be too much of a risk to the public given the coronavirus pandemic.
The dramatic Supreme Court challenge has lasted for more than three hours and went late into Friday evening after the NSW police commissioner sought an injunction on the grounds the rally would breach COVID-19 health orders.
Defence barrister Emmanuel Kerkyasharian, appearing on behalf of one of the rally's organisers Raul Bassi, told the court it would be safer to allow the protest to go ahead with social distancing measures in place because otherwise protesters could be corralled by police into smaller groups when being asked to move on.
"The purpose of this order is to seek your honour's approval (for protesters) to gather in places they otherwise might not, that is to say on roads and not on footpaths," he said.
"If your honour refuses this, people are going to turn up and be more tightly packed - increasing the risk of transmission."
But Judge Des Fagan said Australia's social distancing measures had placed the country in a better situation compared to overseas and that it was not a time to throw away such caution.
"People have given up their livelihoods, they've given up all their pursuits and pastimes … everybody has given up a lot in order of trying to defeat the disease," the judge said.
"At the present point, such a gathering, self-evidently, contravenes every advice that has been given and health directives of the government which the entire community is endeavouring rigorously to follow for our own self-protection - its not an abolition of a right of demonstration at all."
"All of us have given up many rights to try and deal with this disease," the judge said.
"People have had to give up attending church services ... (many) have had to give up things that are very important to them in an individual sense."
Premier Gladys Berejiklian said the injunction was critical because the NSW government would not "give the green light to thousands and thousands of protesters".
Ms Berejiklian said earlier this week a request was made to police for a "small protest" which could have been managed.
Mr Fuller said by this morning it appeared in excess of 10,000 people could attend the black deaths in custody rally.
"I spoke to the Premier this morning on the basis of that - the only option was for the protesters to cease their will to protests or for us to take this to the supreme court," he said.
Ms Berejiklian said it became clear the protest would be too large, there was a decision to take the step of seeking an injunction.
"When I spoke to the Commissioner and it became abundantly clear police would not be able to ensure the maintenance of the health orders, the police commissioner and I discussed (he would) apply to the supreme court (to stop the protests going ahead)."
However, there were already more than 16,000 people registering an interest in the protest last night on Facebook.
Ms Berejiklian asked protesters to consider expressing their views in a different way.
"Please do not breach the health orders."
It comes as Australia's chief medical officer cautioned people against attending Black Lives Matter and Indigenous incarceration protests around the country, fearing the gatherings could cause significant outbreaks of COVID-19.
Dr Brendan Murphy said if 50 people got infected at a mass protest, it could increase community spread as the people are unrelated.
"This is a matter of principles and safety. Of course, there could be a gathering with no infected person, but we just don't know. But one single high viral load person can infect 30,40,50 other people. We've seen that in Australia," Dr Murphy said.
"If you had 50 unrelated people who got infected at a mass gathering, you can imagine that over a period of weeks you could get a very significant community spreading event."
After coming under extreme pressure on the matter this morning from both her own front bench and voters, Ms Berejiklian repeatedly insisted she had never "greenlit" the protests.
However the Premier said yesterday protesting was an "inherent right in our democracy" and that she would "never want to be in a position where we took away the right of the people to demonstrate their ability to protest - but it has to be done in a COVID safe way".
She claimed today this was not "greenlighting" the process.
"I want to be very very clear at no stage, at no stage did the NSW government give the green light, support thousands of thousands of flagrantly breaching the health rules," she said.
Ms Berejiklian noted she had previously "taken swift action against those in my own team who have breached the health orders" - likely referring to Don Harwin.
"We do not want anyone flouting the health rules," she said.
"It only takes a couple one or two people having the virus".
In a heated press conference where she was pressed by reporters on whether she had backflipped, Ms Berejiklian insisted that the proposal initially put to police from protestors "was extremely different to what is being put now" and "that was confirmed to me this morning by the Commissioner".
The move came after Prime Minister Scott Morrison urged Australians not to protest this weekend to prevent the spread of COVID-19, pointing to the sacrifice of Diggers on Anzac Day as the premier comes under fire for allowing the rally.
Mr Morrison called on people to make sacrifices to protect the health of all Australians, warning the health risks of mass gatherings like the Black Lives Matter protests are "real."
"One of our greatest fears at the start of this COVID crisis, premiers, myself, our cabinet at a federal level, has been our concern for the potential impact on Indigenous communities of COVID-19," he said.
He said our new-found liberties come with great responsibility, pointing to the sacrifice of Aussie Diggers in not being able to attend memorial services on Anzac Day and the "absolute agony" people experienced of not being able to attend funerals during the lockdown.
"And so for all of those Australians who couldn't attend the funeral of a family member or couldn't see a loved one in a nursing home or a veteran who couldn't remember their fallen colleagues by attending a war memorial service on Anzac Day, I say to them don't go.
"We all found a way on Anzac Day to thank those who gave us our liberty and not gather in large numbers. And we stood on the end of our driveways and we held up a light on that dawn in our windows or our balconies and we found a way to celebrate those who gave us our liberty. Let's not misuse that liberty. Let's respect it."
NSW Treasurer Dominic Perrottet earlier took aim at the Premier calling any move to allow the protest "indefensible".
Government backbenchers told The Daily Telegraph there is growing internal anger about the Premier's earlier stance.
MPs have even called it Ms Berejiklian's "greyhound moment," in reference to former Premier Mike Baird's ill-fated greyhounds ban.
Mr Perrottet told 2GB's Ben Fordham the "enormous sacrifices" made by Australians during the COVID-19 pandemic were the main reason why the protest "clearly shouldn't go ahead".
"You can't defend the indefensible, it's ridiculous," Mr Perrottet said.
"We've made enormous sacrifices … as a father of six kids I go home to mass protests every day, I can't take my kids to my brother's house under the restrictions.
"We're all doing our bit … when people make enormous sacrifices right now I think that situations like this and protests like this one on the weekend clearly shouldn't go ahead."
Police Minister David Elliott also unleashed a scathing attack on protesters as they prepare to take to the streets on Saturday, declaring them "certifiably insane" for gathering during a pandemic and warning police will be out in full force.
"Anyone who goes to a protest during a pandemic is certifiably insane, they are nuts.
"I have been up half the night talking to senior police taking legal advice but as the premier said, there are things in society it's virtually impossible to stop and the right to political freedom is one of them," he said.
And former PM Tony Abbott joined the attack, saying he couldn't understand "why on earth" the Premier had given the green light to "make merry on the steps of Town Hall" during a public health emergency.
"You can't go to the footy, why on earth should 20000 people be allowed to gather at Town Hall," Mr Abbott told 2GB.
"People have been fined for living their lives, why one earth should 100000 people be able to make merry on the steps of Town Hall breaking all these so called health emergency rules."