Organisers of a Newcastle Black Lives Matter protest have won a Supreme Court battle against the NSW Police Commissioner to authorise the protest.
Justice Christine Adamson ruled this afternoon that the protest would be authorised.
Counsel for the organisers, Felicity Graham, argued that the protest did not carry a greater risk than other now-permitted events, such as community sport or matches in stadiums with audiences of up to 10,000.
At the time of the hearing, 539 people had responded “attending” to the Facebook event for Sunday’s protest, organised by Fighting In Solidarity Towards Treaties (FISTT).
Graham also noted that organisers had a plan to mitigate the risk of transmission, including to disperse masks, encourage social distancing and encourage unwell people to stay home.
As such, the risk of a coronavirus outbreak did not, in this case, outweigh the protestors right to political expression.
The case followed an application by the NSW Police Commissioner to “prohibit” the gathering under section 25 of the Summary Offences Act 1988 (NSW), arguing that the protest created an “unacceptable risk” of COVID-19 transmission.
Despite the language of the Act, the court cannot stop protests from occurring but rather changes whether protestors are immune from some offences. Participants at authorised protests cannot be arrested for offences like obstructing traffic and not following police move on orders
The case is the second such challenge to Black Lives Matter protests in NSW in recent weeks. A police challenge to the Sydney Black Lives Matter protest on 6 June was unsuccessful after the Court of Appeal found that police had already authorised it.
NSW Chief Health Officer, Dr Kerry Chant, gave evidence that she believed there was a “low risk” that coronavirus transmission would occur at would the protest.
Dr Chant had given evidence that a similar level of risk existed for the Sydney Black Lives Matter protest in the earlier Supreme Court challenge.
No coronavirus cases have been linked to the Black Lives Matter protests that drew tens of thousands in NSW on 6 June.
Dr Chant also stated there is a similarly low risk of community transmission associated with the protest when compared to permitted community sporting events.
Assistant Police Commissioner Max Mitchell gave evidence that the protest risked spreading coronavirus to immunocompromised Indigenous communities.
However, protest organiser, Taylah Gray, told the court that “I have spoken with my Elders, and they are happy for us young people to continue the fight while they stay home.”
The challenge comes amidst increasing numbers of coronavirus cases in Victoria.
However, despite claims by several Liberal Party MPs and media, there is no evidence that Black Lives Matter protests in Victoria caused the recent increase in cases.
The Victorian Department of Health has stated that one protestor “may” have been infectious at a Black Lives Matter protest in Melbourne. Two other protestors were later found to have coronavirus but were not infectious at the time of the protest.
There is no evidence any of the protestors contracted coronavirus at the protest.
“While FISTT understand the importance of social distancing due to COVID-19, NSW Police or NSW Government have not given First Nations Peoples the opportunity to have our voices heard, other than suggesting protests after the pandemic has passed,” protest organisers, FISTT, stated in a media release earlier today.
“This is unacceptable. First Nations Peoples will continue to die at the hands of police throughout this pandemic and the next as long has racist, unjust systems of oppression remain.”
A Sydney Black Lives Matter protest is also planned to take place in the Domain on Sunday, as part of a planned weekend of national actions.
NSW Premier, Gladys Berejiklian, has said the State Government would do “everything we can” to stop the protests going ahead.
Justice Adamson’s reason will be published on Monday.
