The Supreme Court has rejected an urgent legal challenge to sweeping powers granted to NSW Police for Israeli President Isaac Herzog’s visit to Australia, in a blow to pro-Palestine protesters.
Supreme Court Justice Robertson Wright made orders on Monday, less than an hour before a planned protest at Sydney’s Town Hall. He will deliver reasons at a later date.
“My conclusions have not been reached easily or lightly,” he said.
The NSW government quietly declared Herzog’s visit a major event on Friday under legislation typically used to manage crowds at large sporting events.
It triggered wide-ranging powers for NSW Police, including to shut down parts of a “major events area” in the Sydney CBD and eastern suburbs, to limit the number of people who can remain in the area, and to conduct searches.
The extra powers do not explicitly ban any protest, but they expose participants to an additional layer of criminal sanctions if they fail to comply with reasonable police directions.
A pro-Palestinian protester who yelled “shame” and “free Palestine” as Herzog’s motorcade departed from Bondi Pavilion on Monday was issued a move on direction by police under the major event powers while the court challenge was under way. He complied with the direction.
The major event declaration was not announced publicly until Saturday. The powers run for four days from Monday.
It is the first time the powers have been used solely for the visit of a foreign dignitary.
The Palestine Action Group (PAG) has planned a demonstration against Herzog’s visit at Town Hall from 5.30pm on Monday. It has estimated about 5000 people will attend.
That location is within the “major events area” declared by the state government, giving police broad powers to prevent demonstrators gathering at Town Hall if they decide to act.
PAG challenged the declaration in court.
Peter Lange, SC, acting for the group, told the Supreme Court during an urgent hearing on Monday that the “declared major event … is said to be the [presidential] visit”.
He said this was “not sufficient to amount to an event” for the purposes of the major event legislation.
Herzog arrived in Sydney on Monday morning and is also expected to visit Canberra and Melbourne as part of a visit arranged after the Bondi Beach massacre on December 14. The attack, which targeted the Jewish community, killed 15 people and injured dozens more on the first night of Hanukkah.
The visit prompted pro-Palestine activists to prepare for a nationwide day of protests to coincide with Herzog’s arrival. A United Nations commission of inquiry found Herzog and other Israeli officials were “liable to prosecution for incitement to genocide” for comments made after the October 7, 2023, attack by Hamas.
PAG argued the government acted outside its legal powers in making the major event declaration, as well as that the declaration was made for an “improper purpose”.
The legislation explicitly states the government “may not declare … [a] political demonstration or protest to be a major event”.
The declaration made by the government describes the event as the presidential visit.
Barrister Felicity Graham, also acting for PAG, argued the declaration was made for the improper purpose of shutting down protest when the laws were aimed at facilitating major events in NSW.
There was “no evidence” Herzog intended to visit Town Hall or NSW Parliament where protesters wanted to march, Graham said.
“They could put barricades up and stop anyone entering Town Hall,” Graham said of the potential use of police powers. “They can stop the protest happening at all.”
Justice Wright said during the hearing that the government’s comments when the major events declaration was announced appeared to suggest its aim was “not suppression of protest, but keeping two groups separate”.
The government said in a media release on Saturday that “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”.
Wright said the declaration was also made in “the context of what occurred on the 14th of December where, it appears, there are elements in Australian society who think that it is appropriate to take weapons and shoot various people who are participating in a religious celebration”.
He said the fact Hyde Park was excluded from the area covered by the additional police powers appeared to indicate “an attempt to balance both the interests of protesters and their legitimate rights to express their views … and also, then, the legitimate rights and interests of those who are participants in the visit”.
Brendan Lim, SC, acting for the government, said Herzog was “the Israeli head of state, not head of government”, and the context of his visit was relevant.
Lim said the carve-out in the restrictions to allow a protest in Hyde Park and a march to Belmore Park in the city’s south “defeats the alleged improper purpose”.
There was evidence the protest would “intercept with the president’s visit”, Lim said. Town Hall was close to an event on Herzog’s itinerary this evening at the International Convention and Exhibition Centre at Darling Harbour, he said.
Had it been successful, the challenge to the major events powers would only have removed one source of potential criminal liability for protesters.
The challenge covered one of two layers of restrictions currently in place in NSW.
The Palestine Action Group has also launched a legal challenge to separate public assembly restrictions, introduced following the Bondi tragedy.
Those restrictions were extended last week, and they remove protections against criminal charges for protesters who block traffic or pedestrians on unauthorised protest routes. The protesters’ preferred route is not authorised.
The challenge to those restrictions will not be heard until after the presidential visit.
Police have urged the group to consider an alternative march route from Hyde Park to the city’s south, but protesters said an important aspect of the protest was being visible outside Town Hall and proceeding to NSW Parliament.
Police have not authorised that route. Outside of the court process, PAG has asked police to exercise their discretion to allow the march to proceed on that route.
Amber Schultz is a crime and justice reporter with The Sydney Morning Herald.Connect via X or email.
Jessica McSweeney is a reporter at The Sydney Morning Herald covering urban affairs and state politics.Connect via email.