Isaac Herzog visit: protesters lose challenge to sweeping special police powers. What now?

The NSW Supreme Court has dismissed a challenge to the extraordinary powers given to police to disrupt protests against Israeli President Isaac Herzog’s visit to Sydney this week.

The decision was handed down late Monday, minutes before a planned protest was scheduled to start through Sydney’s central business district, from Town Hall to Parliament.

Given the urgency of the challenge, Justice Robertson Wright did not hand down reasons.

The decision means protesters attending the demonstration on Monday evening or in the days ahead could be searched by police and face fines of up to $5,500 for not complying with police orders.

What was the case about?

The challenge was brought by the Palestine Action Group in response to the NSW government declaration that Herzog’s visit would qualify as a “major event” under the Major Events Act of 2009.

This declaration is significant because it grants police additional powers to move people on, close specific locations, search people inside a designated area, and issue orders to prevent disruption or risks to public safety.

The declaration zone encompasses the Sydney CBD and stretches out to the eastern suburbs.

It is important to note that Hyde Park was not affected by the order. But the protesters wanted to gather at Town Hall, as Palestine Action Group organiser Josh Lees explained:

We assert our right to protest at Sydney Town Hall because it is the most visible town square that we have in this city for a peaceful assembly and demonstration. We will not be shunted off to some park — out of sight, out of mind — on a dark weeknight. That is not consistent with a genuine right to protest.

The group’s challenge was made on three grounds:

• Herzog’s visit does not constitute an “event” under the relevant legislation
• the designation is unreasonable
• it was made for an “improper purpose” of suppressing a protest.

Determining an ‘event’ under the law

It is important to understand that the designation of the “major event” area for Herzog’s visit was not made by the NSW parliament. Rather, as is usual in these cases, it was made by the tourism minister, Stephen Kamper, under the Major Events Act.

This legislation was aimed at keeping public order during major sporting or music events. Although the act has been used to expand policing powers for large government meetings, such as the 2018 ASEAN–Australia Special Summit, this week’s action is reportedly the first time it has been used solely for the visit of a foreign dignitary.

The act also specifically states that it cannot be used to “declare an industrial or political demonstration or protest to be a major event”. The government’s declaration does not mention protests, however – it declares the major event to be the “Israeli presidential visit”.

The plaintiffs argued the Major Events Act requires the declaration to specify a time, location and who is participating in the “event”.

Although the declaration included a map of the area covered by the declaration and a four-day time period from February 9–12, the plaintiffs argued it lacked precise locations and participants.

This was problematic as it infringed on the public’s fundamental rights of expression and assembly.

Infringing on people’s rights

For various reasons, the plantiffs did not use the implied freedom of political communication as the basis for their challenge.

But they did question the impact on people’s human rights through what is known as the “principle of legality”. Put simply, this principle requires courts to presume that any law passed by the state will not infringe on human rights – unless there are clear words to that effect in the law or it is implied.

The judge, in dismissing the challenge, presumably did not agree with these arguments.

Nor did Justice Wright apparently agree with the plaintiffs’ assertion the declaration was unreasonable and had an improper purpose – to suppress a protest. This would have been difficult to prove, given the minister had cited public order and security concerns in his decision, which could be viewed as a proper purpose.

Broader implications of the ruling

The case raises legal questions about the extent to which a government can restrict protests to a particular area (like Hyde Park) in the name of public order.

In its press release , the government said:

These arrangements are not a ban on protests or marches. People retain the right to express their views lawfully.

On one hand, there is an argument that people should be able to choose where they want to protest to maximise impact.

An argument could also be made that some balance is required between the right to protest and the need to maintain public safety or order. Indeed, during the hearing, Justice Wright suggested the exclusion of Hyde Park from the declaration may have legitimately achieved this balance.

This will be relevant to another challenge due to be heard before the NSW Supreme Court on February 26 to the government’s restrictions on protests following a terror attack. This power was given to police in legislation passed immediately after the Bondi terror attack in December.

Given protests will continue to occur in all states in the face of restrictions like these, it will become increasingly important for the courts to clarify this question about how to find the right balance and ensure freedom of expression is not curtailed.