Legal Challenge Against Police Powers Denied
The Palestine Action Group has lost its legal challenge against the extensive powers granted to police by the Minns government during Israeli president Isaac Herzog’s visit.
Under the state’s "major event" legislation, typically applied to sporting events, police may search anyone within designated areas of the Sydney CBD and eastern suburbs until Thursday. These powers also allow police to move people on, close specific locations, and issue orders to prevent disruption or risks to public safety.
Failure to comply with police directions may result in penalties, including fines up to $5,500.
Supreme Court Hearing and Protest Plans
The group appeared in the Supreme Court in Sydney on Monday before Justice Robertson Wright, launching an urgent challenge ahead of a planned protest at Sydney’s Town Hall that evening.
Despite the challenge, protesters still risk breaching another anti-protest restriction enacted after the Bondi terror attack by marching to state parliament on Monday evening. This restriction, known as the public assembly restriction declaration, grants police full move-on powers under the summary offences act for offences such as obstructing traffic.
Government Expands Police Powers
On Saturday, the Minns government expanded police powers by declaring Herzog’s visit a major event, prompting the group to challenge the decision on Sunday.
Barrister Felicity Graham, representing the group alongside Peter Lange SC, argued the government had improperly used the legislation as a "backdoor way" to curtail protests.
In court, the government rejected claims of improper use, asserting the powers were necessary to ensure the safety of the Israeli president and the community.
Arguments Presented in Court
Shortly before the judgment, Graham cited a government briefing showing police listed themselves as the "promotor" of Herzog’s visit and referred to protesters as "spectators." She argued this indicated improper use of the act, describing it as a "square peg being sought to shove into a round hole."
"This is about stopping legitimate political expression in the public square against a controversial visiting head of state, from a country that is before the international court of justice on a charge of genocide."
Graham highlighted government comments from Saturday’s declaration announcement, stating,
"We cannot allow a situation where mourners, visitors and protesters are brought into close proximity in a way that risks conflict, violence or public disorder."
She noted Sports Minister Steve Kamper’s remarks that confrontation between protesters and officials could attract world news attention and harm the reputation of the state and Australia.
"One might say the quiet part has been said out loud," Graham said.
Justice Wright questioned this, suggesting the government’s motivation was to keep opposing groups separated due to security risks following the Bondi terror attack, where 15 people were killed during a Hanukkah celebration.
Graham responded,
"In terms of where the president expects to be, it’s difficult to match that up then with the breadth of the major event declaration."
"Just as the Act prohibits the declaration of a protest as a major event, we say the major event can’t be declared in such broad terms, lacking in such specificity, as to only describe a four-day period and a very large geographical area as a backdoor way of stopping protests during that time in the general location."
Lange argued the powers were unreasonable in this case, noting the declaration allowed police to ask any person in the eastern suburbs over four days to open their bags, containers, or "any other thing" in their possession.
Government barrister Brendan Lim SC argued the legislation’s definition of an "event" is not specified and should be interpreted broadly.
"It is the maintenance of security and safety of the president, dignitaries and the community generally, in light of the national terrorism threat and heightened community tensions, and the need to safely manage potential large crowds," Lim told the court.
"That is not a purpose of suppressing protest, it is a purpose of securing safety."
Lim also noted that police excluding Hyde Park from the declaration indicated that suppressing protests was not the intent, countering earlier arguments from Graham that this was a distraction.
Judgment and Protest Restrictions
Justice Wright was expected to deliver a decision on the government’s use of powers under the major events legislation around 4pm. The protest against the Israeli president was scheduled to begin at Town Hall at approximately 5:30pm.
The group planned to march despite breaching another protest restriction: the public assembly restriction declaration.
This extension prevents authorisation of protests under the form 1 system, effectively banning marches in designated areas without risking arrest. The designated area includes Town Hall, the northern part of the CBD, and the eastern suburbs but excludes Hyde Park.
