Judge backs police as Black Lives Matter protest banned
NSW Police has won a dramatic court battle to ban a Black Lives Matter rally in Sydney after a judge found a senior officer acted independently when she launched legal action against its organisers.
Justice Mark Ierace ruled in favour of the police in the Supreme Court on Sunday and prohibited the rally scheduled for the CBD on Tuesday, finding NSW was on a "knife-edge" because of the spike in COVID-19 cases in Victoria and in a more dangerous position than when a previous BLM protest was held in Sydney on June 6.
Barrister Felicity Graham, acting on behalf of the rally's leader Padraic Gibson, said they would lodge an appeal and successfully asked for the court order to be temporarily suspended until Monday morning so they could offer to police to move the protest to the Domain as a compromise.
The court had been told NSW Police Commissioner Mick Fuller had appeared on 2GB last Monday and told host Ben Fordham he had instructed his team to launch legal action against the protestors so his officers could move people on if they crowded together or blocked roads because of the risk of coronavirus transmission.
Lawyers for the organisers said the interview took place three hours before police had met Mr Gibson for him to push his case, arguing that meant officers "might not have brought an impartial or open mind" to the meeting.
But NSW Police Acting Assistant Commissioner Stacey Maloney, who is in charge of officers in the city, told the court she acted independently when she formed the view to oppose the rally last Monday afternoon after reading briefing notes about the meeting with Mr Gibson from her colleagues and other information provided by him.
"I had made up my own mind, the commissioner had his own view, but my name has to sign off … on the prohibition order for the court," she said.
Justice Ierac said he accepted Ms Maloney's evidence that she had made up her own mind to take legal action to de-authorise the protest even though she was aware of Mr Fuller's strong words on 2GB earlier that morning.
"I also accept her evidence that ... she considered the matters put forward by (Mr Gibson) at the conference, and his written representations, in the manner required by the act," he said.
Mr Gibson's lawyers argued Ms Maloney made a phone call to launch the legal action only 17 minutes after she had received the notes from the meeting and that it would not have been possible for her to "properly consider the relevant material in that time."
But Justice Ierac rejected this as well, saying "I do not think it was impossible for (Ms) Maloney to properly consider the material she received at 3:55pm in the space of 17 minutes".
The judge said NSW was "on the knife-edge of a further escalation in community transmission of the virus".
"In my view, the balancing of the competing concerns of the right to free speech and to demonstrate, as against the safety of the community at large, at this particular phase of the pandemic, necessitates the granting of the order prohibiting the holding of the public assembly," he said.
Originally published as Judge backs police as Black Lives Matter protest banned