Speaking outside court, the rally’s organiser James Supple said there are no plans to appeal the decision and the event will go forward as planned.
“We’ll still be holding an event this Saturday. We’re urging people to come and participate,” he said.
“As the court said, it doesn’t actually make it illegal to come to a protest, it simply gives the police more powers. So we’ll be doing everything in our power to make sure it’s a safe gathering.”
In a statement, NSW Police Assistant Commissioner Mick Willing urged people to obey the court’s decision because “we are in the midst of an unprecedented pandemic”.
“I want to be clear about this – if people choose to break the law and attend this protest, police will not hesitate to take the appropriate action against them,” he said.
Police previously threatened to fine and arrest those who attend unauthorised protests in Sydney this weekend. Another demonstration, protesting deaths in custody, is scheduled for Town Hall on Friday night but organisers have not applied with police for it to be authorised.
Organisers of the refugee rally did apply for police authorisation but were rejected.
Commissioner Mick Fuller said police would use all of their powers to move protesters on, starting by “writing tickets of $1000” and “if you don’t move on, well, then you’ll be arrested”.
Barrister Lachlan Gyles, SC, appearing for the police, told the after-hours hearing that an attendee at last weekend’s Black Lives Matter rally in Melbourne has since tested positive for COVID-19, which shows the threat of people being infected in a mass assembly “has gone from being a risk to an actual case”.
“[It] has all sorts of possible domino effects,” Mr Gyles said.
Assistant Commissioner Willing told the court he “couldn’t be confident at all” that attendees at the rally would engage in social distancing, even if they were requested to do so by organisers.
He said he attended the rally in Sydney last Saturday, which police also attempted to have declared prohibited, and saw “there were some people who wore masks … large numbers of people who didn’t”.
Giving evidence, Mr Supple said about 200 people have indicated on Facebook they will attend, but his experience from organising “dozens” of protests was not all of them would show up on the day.
Mr Gyles accused Mr Supple of being “prepared to play Russian roulette” with attendees, and said there was “some idea that these organised political rallies are some sort of golden ticket to trump matters of public health”.
The barrister suggested that instead of attending the rally, people could write letters to politicians or take out an advertisement.
“Questions of public safety, public health … should clearly take preference over the sort of political exercise which is being undertaken,” Mr Gyles said.
Barrister Emmanuel Kerkyasharian, appearing for Mr Supple, said hundreds of people are already permitted to gather in certain circumstances, including at schools and universities, and the prospect of delaying protests to another time is “frightening”.
“The purpose of this protest is to deal with people who are imprisoned against their will, in effect,” he said. “Every day matters.”
Under the Summary Offences Act, if a demonstration is authorised its participants get some immunity from criminal liability, including from obstructing traffic. Lawyers believe the approval will also operate as a “reasonable excuse” exemption under public health legislation.
The application is the second of its kind to be made in a week, after police unsuccessfully attempted to have last Saturday’s rally in Sydney declared prohibited. Fifteen minutes before it began, the Court of Appeal declared the rally was authorised.
On Thursday, NSW Premier Gladys Berejiklian encouraged people planning to protest to “tell us what you think in a different way”.
“Do not risk the health and safety of others in order to express a view. We can all do that once the threat of the pandemic is over,” she said.
From Saturday, NSW residents will be permitted to invite up to 20 people into their homes as part of a further easing of restrictions. Up to 20 people will also be allowed to gather in an outdoor space, while food courts will be reopened with social distancing regulations.
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Georgina Mitchell is a court reporter for The Sydney Morning Herald.