Justice Fagan added that many forms of public gatherings had been restricted, including funeral services which loved ones had not been able to attend.
He said the right to gather for such a protest was not being “taken away”, it was being “deferred”.
Justice Fagan did not make an order prohibiting the protest, but refused an order allowing it to go ahead, which had the same legal effect. Protesters may still attend the event, as organisers have foreshadowed, but may be exposed to criminal sanctions for doing so.
Tarneen Onus-Williams, an organiser of Melbourne’s rally, said the NSW decision was “appalling”.
“Considering the NRL is going ahead next week, this has shown that police and government are targeting Aboriginal people,” she said.
She said activist group Warriors of the Aboriginal Resistance (WAR) believed the NSW Supreme Court decision was a move to “silence Aboriginal people’s voice”, and did not accept authorities’ fears that the protest could result in a spike in COVID-19 cases.
“Not at all, the NRL is opening up [for spectators] next week,” she said. “We’re an essential service, saving black lives and protecting black lives is an essential service.”
On Friday, Victoria’s police force, Premier and Chief Health Officer all asked people not to attend the Melbourne rally, while the Prime Minister and federal Health Minister also urged against taking part in protests across Australia on Saturday.
Deputy Commissioner Shane Patton, who was named the state’s new Chief Commissioner this week, said police had been urging organisers to cancel the Black Lives Matter rally, which will converge on the steps of Parliament House from 2pm.
Chief Health Officer Brett Sutton said that Victoria’s effort to suppress COVID-19 could be set back by the planned rally, which is expected to attract tens of thousands of people.
But representatives of WAR, which has organised the demonstration to highlight Aboriginal deaths in custody and the death of Minneapolis man George Floyd at the hands of police, have vowed to continue while urging protesters to take precautions.
WAR organiser Meriki Onus urged those attending the event on Saturday to bring masks and said community safety was “paramount”.
“Do not protest in groups of more than 20 and within your group of 20 you are to remain 1.5 metres apart and ensure there is distance between each group of 20,” she said.
She also urged attendees to bring hand sanitiser and use it regularly.
“This is a global and historic movement, a product of hundreds of years of systemic racism and policing that the state has contributed to. Every time we rally, the state and police attempt to stop us by force,” she said.
“Police in South Australia have acknowledged that this must go ahead and are working with organisers to ensure safety for people attending. This is what we are asking.
“Governments and police are trying to deflect from their failures and responsibility. Since 1992, 432 Aboriginal people have died in custody with countless more before then. No one has never been convicted for their deaths.
“Protest is not a choice when so many of our people are murdered at the hands of police and prison guards. We stress that the safety of our community is paramount.”
The organisers then read out a list of 12 demands, which included the dismantling of the police and justice system, an end to “police brutality and racist policing practices” and the reopening of inquests and cases of Aboriginal deaths in custody to be overseen by independent bodies.
Mr Patton said police were resigned to not being able to fine everyone who turned up at the rally, given the impracticality of doing so. However, they would fine some organisers and may send infringement notices to people after the event.
“We don’t want to be applying any use of force whatsoever … we don’t even want this to go ahead, but if it does, we will try and have a peaceful [event], but people have to be accountable for their actions,” he said.
“If it goes ahead we’ll probably have to apply a lot of discretion because you can’t practically issue thousands and thousands of infringements.”
Mr Patton said if the protest became unruly and if police were physically confronted by protesters, they would arrest attendees. Police could issue a declaration to perform searches on protesters if necessary, he said.
“We will do what we can,” he said. “My message is ‘don’t go’, it will be illegal because of the Chief Health Officer’s directions.
“Do it online, do it at home, post something in solidarity online.”
A statement issued by Victoria Police on Friday afternoon reinforced Mr Patton’s message: “There are obvious and potentially dire public health consequences should this event lead to an outbreak of coronavirus”.
Victoria Police statement
Claims in the media this week that Victoria Police will not be issuing infringement notices to people who breach Chief Health Officer directions at tomorrow’s planned protest in the CBD are wrong. In the exercise of police discretion, those who intentionally break the law will be held to account, and we have again contacted the organisers of the protest this morning to ensure this point is understood.
As Assistant Commissioner Luke Cornelius made clear earlier this week, it is our strong preference that the protest does not occur at this time, while the restrictions in relation to public gatherings remain in place.
There are obvious and potentially dire public health consequences should this event lead to an outbreak of coronavirus.
If it is to proceed then it must be conducted in a manner which does not breach the Chief Health Officer directions.
We have also been clear that it would not be practical to issue infringements to thousands of persons congregating for a protest. We wish to keep the protest a peaceful one.
That said, after the event and as per other recent protests, we will assess the evidence of the protest and if it did breach CHO guidelines we will not hesitate to issue infringement notices to the organisers. We will also consider other persons whom it may be appropriate to infringe.
NSW Police took the organisers of Sydney’s simultaneous Black Lives Matter protest to the Supreme Court, after the number of people expected to join the rally swelled in the time since it was given approval.
NSW Premier Gladys Berejiklian said it “never was and never will be” the state’s intention to allow thousands of people to be “flagrantly disregarding the [state’s] health orders”.
Prime Minister Scott Morrison also urged people not to attend protests which are planned to take place across the country.
“Our message is very clear,” Mr Morrison said. “The health risks and the risks of people coming into close proximity are real, and Australians have worked incredibly hard in recent months and undergone great sacrifices to protect the health of the most vulnerable, and that has included our Indigenous communities.”
Gatherings of more than 20 people are not permitted under Victoria’s current regulations but more than 30,000 people have indicated they will attend or are interested in this weekend’s march against police brutality.
Organisers have asked people to wear masks, bring hand sanitiser and self-isolate afterwards if they can, but Dr Sutton said now was not the time to hold a protest.
“There is a risk that all of the gains that we have made are put at risk by people gathering in large numbers,” he said.
“It takes a single individual who is infectious to potentially transmit to many others in a mass gathering setting.
“I am advising people not to attend. There are other ways to protest.”
Dr Sutton said anyone who ignores advice to not attend should stay 1.5 metres apart and wear a mask if they can.
However, he said this would be difficult when people are protesting loudly.
“That’s what protests do so that adds to my concern about the risk of transmission,” he said.
Premier Daniel Andrews has one clear message to protesters: “Don’t go” and find a safer way to make the same point.
“We are in the middle of a global pandemic. This is serious,” Mr Andrews said.
“We don’t want all the hard work, all the sacrifice that Victorians have made, frittered away by people gathering to make an important point, but it is not the only way to make that point.”
There were three new COVID-19 cases in Victoria recorded overnight, taking the total number of people who have had the virus to 1681. There are currently 74 active cases in the state.
Of the new cases, two were returned travellers in hotel quarantine and one was a prep student from Newbury Primary School in Craigieburn.
The student had no symptoms last week and developed symptoms over the weekend.
The school is closed for cleaning and will reopen next week.
Mr Morrison said one of the government’s biggest worries at the start of the coronavirus outbreak was the potential impact on Indigenous communities.
“This isn’t about people’s ability to express themselves and engage in protest activity, we all respect that,” he said.
But Mr Morrison urged protesters to find another way to express their views without putting their health and that of others at risk, along with “the great gains we have been able to make as a country in recent months”.
“I encourage people not to attend for those reasons and those reasons only,” he said.
The Australian Health Protection Principal Committee, made up of federal, state and territory chief health officers, released a statement after its meeting on Friday afternoon stating that the expert body “is extremely concerned about proposed large gatherings for protests over the coming weekend and beyond”.
“Australians are reminded that in our recent past a single person infected more than 35 others,” the statement said.
“This virus is very, very infectious.”
With Laura Chung, Michaela Whitbourn and Rachael Dexter
Tom Cowie is a journalist at The Age covering general news.
Simone is a crime reporter for The Age. Most recently she covered breaking news for The Age, and before that for The Australian in Melbourne.
Dana is health and industrial relations reporter for The Sydney Morning Herald and The Age.