Updated ,first published
An eleventh-hour legal showdown will take place on Monday over planned protests against Israeli President Isaac Herzog, after demonstrators launched an urgent challenge to “extraordinary” police powers invoked by the Minns government.
The NSW government on Saturday said it had declared Herzog’s visit a major event under legislation typically used to manage crowds at sporting events, giving police additional powers to “close off” designated areas and to order people to leave.
It is the first time the powers have been used solely for the visit of a foreign dignitary; however, they have been implemented during major events attended by state officials.
Herzog is expected to arrive in Sydney on Monday morning, before travelling to Canberra and Melbourne, as part of a visit arranged after the Bondi Beach massacre that killed 15 people and injured dozens more, mostly Jewish, on the first night of Hanukkah.
Herzog will meet Prime Minister Anthony Albanese, Governor-General Sam Mostyn, Opposition Leader Sussan Ley, premiers and members of the Jewish community, including families of victims and survivors of the Bondi attack.
The visit has 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.
The Palestine Action Group has planned a demonstration starting at Town Hall from 5.30pm on Monday and has estimated about 5000 people will attend.
An enormous police presence is expected during Herzog’s four-day visit. Officers will be working an additional 3000 shifts. More than 500 officers have been rostered to police Monday’s protest.
Appearing at an urgent preliminary hearing in the Supreme Court on Sunday, Palestine Action Group barrister Mark Robinson, SC, foreshadowed he would argue the government had acted outside its legal powers in making the major event declaration.
The major event legislation explicitly states the government “may not declare an industrial or political demonstration or protest to be a major event”, he said.
The declaration made by the government on Friday describes the event as the Israeli presidential visit, not the protest. The court will need to consider if this kind of event is covered by the laws.
Robinson also suggested he would argue the declaration was made for the “improper purpose” of “shutting down a protest”.
“It is a straightforward case. The declaration is overbroad, uncertain and unreasonable,” he said.
Barrister Hannah Ryan, acting for the state of NSW, said it opposed having the matter heard urgently. Ryan said the protesters could march in Hyde Park and Belmore Park, as suggested by police.
“There is another way for this protest to go ahead, which would not be impacted by the [restrictions],” she said.
The major event powers take effect at midnight and continue until Thursday. Justice Natalie Adams said in a preliminary decision on Sunday night that “the court does have capacity to hear the matter on an urgent basis”.
Adams said that if it did not hear the matter urgently, and particularly before 5.30pm on Monday, the “whole purpose of bringing the proceedings would be undermined”.
However, she said it was “most regrettable” that more notice was not given to the state by the protest group in bringing the proceedings.
Adams listed the matter for hearing before Justice Robertson Wright at 10am on Monday.
Palestine Action Group spokesman Josh Lees said the major event declaration granted “extraordinary police powers” including stop and search, exclusion zones and restrictions on public conduct.
“[NSW Premier Chris Minns] is using powers meant for sporting events or cultural events to instead give himself and the NSW Police extraordinary and draconian powers to basically shut down our entire city in the interest of parading out a war criminal to this country,” he said.
“[The Major Events Act] talks about spectators, it talks about advertising … it’s clearly not meant to be used to shut down protests.”
The organisation successfully opposed a prohibition order sought by NSW Police over August’s March for Humanity protest on the Sydney Harbour Bridge, attended by as many as 100,000 people.
Separate public assembly restrictions, introduced following the Bondi Beach massacre on December 14 and extended last week, remove protections against legal charges for protesters who block traffic or pedestrians.
They allow police to issue move-on directions to people who obstruct pedestrians or traffic, behave in an intimidating or harassing manner, or in a way that may be perceived as threatening or causing fear.
Once the protest is no longer static or confined to a designated area, police may issue move-on orders. Police can arrest anyone who does not comply with the orders.
“We are expecting huge numbers to this protest. That does mean there is a high chance that people could spill over from Town Hall Square into the surrounding footpaths and roads, which is normal for mass protests,” Lees said.
“Our message to police is not to issue move-on orders to peaceful protesters who are just trying to gather in what police have said is a completely lawful thing to do.”
NSW Police Acting Assistant Commissioner Paul Dunstan urged the group to consider the alternative march route from Hyde Park.
“We would love the group to relocate … to safely facilitate a peaceful protest on the streets of Sydney,” he said.
“I have concerns about the size of Town Hall, the possibility of overflow into public areas, which could lead to conflict between police and protesters.”
The major event powers extend from Monday to Thursday and cover a “major event area” in the CBD and the eastern suburbs.
Traffic restrictions have been put in place in the CBD. Clearways will be implemented until 2pm on Thursday and buses will terminate at Martin Place instead of at Circular Quay.
Restrictions will also be implemented at Bondi Beach from Tuesday afternoon. Police have urged the public to avoid the CBD on Monday due to the police operation.
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