Publicly crying “Black Lives Matter” isn’t the same as barracking for the Rabbitohs at a stadium, the lawyer for a Sydney rally organiser has told a judge.
“Going to the aquarium, going to sex-on-premises venues, going to football matches – these aren’t essential to our democracy,” Felicity Graham said.
The submissions on Friday came amid the latest in a series of NSW Supreme Court hearings on whether rallies are too great a risk to public health during the coronavirus pandemic.
Ms Graham’s client is fighting police-initiated court action aimed at revoking his Black Lives Matter rally’s “authorised” status.
Should the NSW Supreme Court rule the threat of COVID-19 transmission outweighs the right to protest, demonstrators blocking roads will be liable to arrest and those breaching restrictions could be fined $1000.
A decision is expected at midday on Sunday after Justice Mark Ierace said he would accept written submissions on Saturday.
Ms Graham said the court must recognise the primacy of public protest.
“People know this is not business as usual,” she said on Friday evening.
“They’re protesting in a COVID world … and adjust their behaviours accordingly.”
But Michael Spartalis, acting for NSW Police, said the judge must listen to the evidence of a senior NSW Health official who rated the risk of transmission at the protest as “medium”.
Public health physician Jeremy McAnulty voiced his concerns in court on Friday about the ability of demonstrators to socially distance.
“If someone is infected at the assembly and infects someone else, the effects are exponential and the consequences are significant,” Mr Spartalis told the court.
The rally is scheduled to begin at Town Hall before proceeding to Parliament House where a petition will be delivered.
It will call for justice for Indigenous man David Dungay Jr, who died in a Sydney jail in 2015.
Ms Graham has also argued the court action is invalid as police appeared to have already formed a decision to go to court before a legally required conference with rally organiser Paddy Gibson.
Before the meeting on Monday morning, NSW Police Commissioner Mick Fuller told 2GB radio the assistant commissioner responsible for the CBD had been instructed to take Mr Gibson to court.
But Mr Spartalis said that argument was undermined by the evidence of the officer who actually authorised the court application.
Acting Assistant Commissioner Stacey Maloney said Mr Fuller’s comments had “absolutely” nothing to do with her decision and she received no instruction.
“Assistant Commissioner Maloney’s evidence satisfies all the statutory criteria,” Mr Spartalis said.
The court heard Mr Gibson had prepared a COVID safety plan for the event, including for all demonstrators to wear masks.
About 30 volunteer marshalls will police social distancing.
But police remain concerned the plan isn’t enforceable the way it is at shops or pubs.
Ms Maloney raised a July 5 protest in The Domain, where she said she saw how social distancing couldn’t be maintained.
But Ms Graham said organisers of community sport or corporate events on public land also couldn’t do more than persuade people to obey COVID safety plans.
“They have no power to tell them to leave,” she said.
“There will be a very heavy police presence (at Tuesday’s rally) … who can play that role of checking on people.”