By Wendy Yang -
Pouring rain and bad weather did not stop tens of thousands of people from marching across the Sydney Harbour Bridge on Sunday. The march, organised by the Palestine Action Group, sought to advocate for the “worsening humanitarian crisis in Gaza.”
Traffic on the Harbour Bridge was blocked both ways from 11:30am to approximately 4:00pm yesterday. Transport for NSW issued a warning that the closure of the bridge will cause “flow-on effect” to roads and public transport networks and called for commuters and the public to avert or delay non-essential travel in the Sydney CBD and North Sydney.
NSW Police estimates approximately 90,000 pro-Palestinian protestors took part in the march despite the NSW Police Commissioner’s last-minute application to the Supreme Court for a prohibition order. Under section 25 of the Summary Offences Act 1988 (NSW), the Commissioner may, subject to certain conditions, apply for an order prohibiting the holding of a public assembly. The police cited “serious safety concerns” as a reason for seeking the order.
The Supreme Court handed down its decision on Saturday, allowing the march to proceed.
Speaking at a press conference aired by the ABC last night, Acting Deputy Commissioner Peter McKenna praised the actions of the police. “I’m really happy that the police on the ground, the police commander ran an operation today where they had to make very big decisions, very quickly to ensure people’s safety.”
McKenna acknowledged that the number of protesters who turned up was far greater than anticipated and one of the main concerns was crowd safety. “At points today, we were really concerned about a crown crush.
“For example, we could not get those people, the number, the significant size of that crowd off that northern egress route without risking crowd crush,” he said.
Is there a ‘right’ to protest?
Professor Ron Levy, from the ANU Law School at the Australian National University, says that “generally it’s a right that’s been read into the federal Constitution …
“[T]here would be references in legislation but the main place where the right to protest would appear would be in cases (case law) …,” he says.
In 2022, NSW parliament passed legislation creating offences for conduct that caused damage or disruption to major roads or major public facilities. The reforms were introduced following a number of protests by climate change activists which disrupted major roads and facilities including Port Botany.
Levy draws a distinction between protest and disruptive protest. “[P]rotest laws tend to be geared towards protests that have some kind of physical implications for everyone else …
“[T]he classic case is blocking lanes of Sydney Harbour Bridge, that’s the kind of thing that increasingly governments are trying to curb. [F]or lack of a better term, it’s the disruptive protest, the kind of protest that impact[s] on the convenience of others,” he says.
Levy explains that we don’t have the right to assembly entrenched in law, but the judiciary will occasionally refer to it. “We don’t have a freedom of assembly as such, but assembly can be protected through the freedom of political communication,” he says. He points out that the court will usually apply a “proportionality test” to the facts of the case.
“[]There are no bright line rules exactly about what can or can’t be done by a police force. It’s more a situation where a court, for example is called on to look at whether … a police force is acting proportionately to curb [political expression].
“There are no hard and fast rules. [I]f you’re protesting something in order to get a message across, the question is: Is it excessively disruptive? Because when you do this balancing, there is a proportionality test between … public safety or public convenience on one hand and the freedom of political communication [on the other],” he says.
Professor Greg Martin, professor of criminology and socio-legal studies at the University of Sydney says there is no “stand alone right to protest.” He explains that the right to free speech and public assembly are not enshrined in the Constitution but are implied rights.
He explains that part four of the Summary Offences Act sets out the intention of the Act and one of the purposes of the Act is to “establish cooperation between police and protesters when arriving at authorisation of a legitimate protest,” he says.
Martin explains that it is incumbent on the organisers of the protest to make an application to the NSW Police Commissioner and provide the requisite information including the purpose, the number of attendees expected, the protest route and so forth.
Martin has conducted research in this area and has written extensively on this subject. He has found that there has been an escalation in penalties. He says that one of the things that they have seen, particularly around issues like environmental activism, is an increase in the response by the state. He says the state has responded by introducing more fines, imprisonment terms and broadening police powers. “So, we have seen across the board, across Australia, sort of an escalation in the penalties that are applied. So, for example, in NSW, there are jail terms of up to two years and potential fines of $22,000 on protests that cause damage or disruption to major roads or public facilities,” he says.
During the protest on Sunday, NSW Police issued a request and asked protestors to cease the march due to safety concerns. Participants were asked to stop crossing the bridge to avoid a crowd crush at the northern end of the Harbour Bridge.
Julian Assange and Craig Foster were among those who attended the march, and similar protests were held in Melbourne and Adelaide.
