By WENDY BACON
NSW police arrested Black Lives Matter organisers on Tuesday before their peaceful protest in the Domain had even begun.
Hundreds of protesters were blocked from entering Djarrbarragall, the Gadigal name for the Domain. Many were threatened with arrest if they did not leave the area.
Black Lives Matter organiser Paddy Gibson was the first to be arrested shortly before noon, when the protest was due to begin.
Gibson announced the decision to hold the rally at Djarrbarragall/The Domain – after NSW Police successfully applied to the NSW Supreme Court for an order prohibiting a march from Sydney Town Hall to NSW Parliament House. The march was organised to support the mother and family of David Dungay Junior, as they handed over a petition calling for the NSW government to consider laying criminal charges against those who suffocated Dungay junior while he was calling out “I can’t breathe’.
Thousands of people attended a peaceful Black Lives Matter rally in the Domain several weeks ago.
At all times, the Dungay family said they would continue with the protest even if it was prohibited. Dungay’s nephew Paul Silva issued a statement which stated, “I tell you what, if the Premier can commit to asking Safework NSW and the DPP ( Director of Public Prosecutions) to investigate whether charges can be laid in relation to my Uncle’s death I’m sure that we can put off the protest. I would like the premier to confirm that black lives matter in NSW by asking for that investigation, if she refuses then it just goes to show that no one cares about our lives and we will see you on Tuesday.”
Despite plans for protestors to socially distance, wear masks, use sanitiser and register their attendance, hundreds of police began to surround the area with scores of vans more than an hour before the protest was due to begin at noon.
Shortly before noon, senior police ordered protesters to leave Djarrbarragall/The Domain or they would be arrested for breaching Public Health Orders that limit gatherings to 20 people. Gibson then asked for time to discuss the situation with the Dungay family and other organisers but was immediately arrested. As he was led off, he called out for organisers to cancel the rally.
NITV later published video of Bundjalung woman and winner of the Young Person’s Human Rights Medal Vanessa Turnbull-Roberts telling people the rally had been cancelled. “So we’ve come together, we’re 1.5 metres apart and the police are outnumbering the people that are here –there has already been an arrest and the police are getting violent and the rally is now cancelled, no one come to the Domain and if you’re here freely keep 1.5 metres apart following health restrictions, guys.” A policeman then says something inaudible and she says, “I am just walking the park as a normal citizen…. We need everyone to move along.” She is then arrested and led away by police holding her by the arms.
Turnbull-Roberts and Gibson were fined $1000 and released. Turnbull-Roberts, who is a law student, told SBS, “I was actually complying with what the police orders were and have now been fined myself. The only people who aren’t exercising a 1.5 distance are NSW Police.”
Most protesters were blocked well before they reached Djarrbarragall/The Domain and were then followed by police through the city streets. Sporadic chants of “Black Lives Matter” could be heard across the CBD. Four other people were also arrested.
Massive petition delivered to NSW Parliament calling for an investigation into Dungay death,
The mother of David Dungay Junior, Leetona Dungay, his nephew Paul Silva and other relatives later arrived at NSW Parliament House to deliver a box of more than 99,000 signed petitions to Greens MLC David Shoebridge, who has been supporting the family’s fight for justice for some years, and Greens Human Rights spokesperson Jenny Leong.
As she arrived, City Hub’s reporter heard the NSW police outside Parliament House counting supporters on the pavement outside Parliament House. Their plan was to issue a “move on” order if there was more than 20.
Leetona Dungay told a large crowd of media that she wants those responsible for the death of her son charged. She said that as Dunghutti warriors, her family will continue to fight for justice. She thanked all those who had supported her during her struggle.
Dungay’s nephew Paul Silva also called for Safework NSW to investigate the death of his uncle that took place in a workplace. “They (Safework NSW) can investigate a finger being cut off but they will not investigate the loss of a human life when he was held down in a workplace.”
Silva said that the NSW Premier could ask the NSW DPP to investigate but had not done so. “If justice is served, our family will take a step back and stop calling for Justice for David Dungay, but we will not stop supporting other families who have suffered deaths in custody.”
Lawyer George Newhouse explained that the family have written to SafeWork NSW asking for it to investigate whether charges could be laid against Corrective Services or Justice Health NSW and anyone else involved in David’s death. “As Paul ( Silva) said they will investigate it if someone is mauled by a tiger but not a black death in custody, ” Newhouse said.
A comment – Was the protest legal?
Australia has no bill of rights so we do not have a basic right to assembly. However, the Courts have decided that an ‘implied right to freedom of communication’ can be interpreted from the Australian constitution. This provides a limited right to protest, which can be overridden by other factors.
The NSW Summary Offences Act provides a scheme in which protest organisers can apply for a permit. After following procedures for negotiation, the NSW police can apply to the NSW Supreme Court for an order to prohibit a march. In the case of this protest, the NSW police successfully obtained a prohibition order and this was upheld by the NSW Court of Appeal.
The case was lost because NSW Health gave evidence that there was a ‘medium risk’ due to COVID_19 compared to a ‘low risk’ several weeks ago. It is not clear why they are not equally concerned about 300 people in a pub or more than 500 at netball events, both of which are allowed. There are very few grounds on which an appeal can be lodged against the decision to grant an order.
Gibson appealed on the grounds that Assistant Commissioner Maloney, who made the decision to apply for the order, had not independently considered the arguments in favour of the march because the NSW Police Commissioner had already broadcast on 2GB that he had instructed police to apply for the prohibition order before she received his representations. While commonsense suggests that Maloney would have been highly unlikely to go against the wishes of Fuller, the Court of Appeal rejected the argument that “apprehension of bias” made the Supreme Court decision to grant the order unlawful and quickly dismissed the appeal.
You do not need a permit to protest
It’s important to understand that you do not have to apply for a permit to protest. Organisers did not apply for a permit to hold the large rally on July 5 on Djarrbarragall/The Domain. The police did not stop the rally although they did stop most of the protesters joining a march to Hyde Park. There were no arrests.
All Black Lives Matter protests, whether authorised or not, have been conducted peacefully and without any evidence of links to COVID_19. The NSW police have opposed all applications for permits for Black Lives Matter protests. Twice the NSW Supreme Court has rejected NSW Police applications for prohibition orders – once in Sydney in early June and once in Newcastle for a protest on 4 July. An unauthorised protest in Hyde Park on June 13 was forcibly shut down by hundreds of police.
The normal situation is that if you protest without a permit, you are liable to be arrested if you refuse to comply with a police direction or block traffic or commit another offence. You can’t just be arrested for joining a protest.
However, COVID_19 has created new offences. Under NSW Public Health Orders, you cannot gather in a group of more than 20 people outside or inside a home. However, there are exemptions for various venues including pubs in which you can have up to 300 people or one person per 4 square metres. You can have netball activities in groups of no more than 500. Community sport is now allowed.
What does the limit of 20 people rule mean?
Can several groups of 20 gather together, so long as they are socially distanced from each other? Does it matter if a single group of 20 is socially distanced by 1.5 metres of not? Could more than 20 people be in a very large space if they were socially distanced and wore masks? ( After all, this is an ostensibly a safer situation than a shopping mall, waiting at busy corners at the lights or on a busy exercise track. It would seem to be similar to being socially distanced on a beach.)
After he lost his appeal against the prohibition order on Monday, Paddy Gibson shifted the location of protest to the spacious area of Djarrbarragall/Domain. The organisers hoped that by encouraging people to spread out across Djarrbarragall and socially distance by at least 1.5 metres; and so long as protesters moved in socially distanced groups of less than 20 and wore masks and sanitiser, they would not be arrested for failing to comply with an order. In other words, the NSW Police might allow a peaceful gathering to take place.
This was always a long shot. The NSW Police Commissioner had condemned the protest and campaigned against it on right-wing media outlets 2 GB and Sky News. On Monday evening, the NSW Premier Gladys Berejiklian declared that the protest was illegal.
The police decided to use hundreds of police to shut down the protest before waiting to see how it was going to be conducted. In doing so, they ran the risk that if people did resist, they would move in and make mass arrests. They had a large number of police vans available in which to place those arrested. This was the main risk to public health. Thanks to the peaceful approach of protesters, this did not happen.
However, it became very clear that the police have adopted an extremely conservative interpretation of the 20 person rule.
As City Hub’s reporter was walking away from the Domain towards Macquarie Street, she was stopped by a police officer who was part of a line of police blocking the pavement ahead of her. This is the conversation that then occurred:
The policeman stopped me walking forward and asked me who I was with. I pointed to my partner standing about four metres behind me. He had stopped to watch to see if a young protester who had been stopped for questioning by police was going to be arrested. The constable then said that my partner could be in danger of getting arrested for breaching public health orders because he was carrying ‘the markings’ of a ‘common purpose’. He referred to a ‘Deadly” umbrella in Aboriginal flag colours, which my partner was carrying. Even though it was closed, you could see the colours. I commented that surely he could not be arrested if he was well away from other people. The constable explained that the police had been told that this was not the case. He said that it didn’t matter whether 20 people were close together or not. To be one of more than 20 people who had a ‘common purpose’ ( to be part of a protest) was all that was needed to break the law.
By that stage, the would-be protesters and police were spread over several CBD blocks but the police still considered them to part of a group of more than 20 people with a ‘common purpose’.
As far as the police were concerned simply trying to enter Djarrbarragall/ The Domain was a breach of public health orders.
The right to protest in NSW has always been constrained but recently it’s taken a very deep dive. Housing and refugee activists have also been prevented from protesting and issued with police warning notices. It may take a court challenge to a Public Health Order fine to clarify what the 20 person rule actually means.
From the point of view of Black Lives Matter protesters, the double standards in the public health orders and their application is a further sign that Black Lives still don’t matter to the NSW government.
Many can understand the position of Leetona Dungay, Paul Silva and the rest of their family and close supporters. Leetona’s son was killed in the custody of the NSW government. She has used every method available to her to get justice for five years. Having failed in its duty of care to her son and caused his death, the government denies her the right to hold a peaceful march to Parliament. At the same time, the NSW government tolerates hundreds of people attending football or netball events and up to 300 drinkers in pubs. This smacks of hypocrisy and double standards. It is discrimination.
Even if the protest was illegal, some will continue in the long protest tradition of civil disobedience.
Following the march, ABC’s current affairs show The Drum asked panellists to comment on the march. Gamilaroi woman and education academic Amy Thunig said, “If we’d never defied court orders or went against the law, we would never have any of the rights that we’ve fought for over the last 230 years .. if we’re not making a scene and being heard, nothing will change.” Later she added, “What we saw today was the police arresting of people who were not violating any of the health protocol rules.” She described the differences in the way different communities are treated, such as a “thousands of people having a party in Byron Bay while our people get arrested for standing up for our matters” as a “perfect example of what we’re protesting against”. If the government took action to stop “police killing us and we get some accountability there will be no need to protest and we can get on with the things that we really want to do like caring for our community.”
Victorian Disability advocate Nicole Lee agreed with Thunig. She described protests as vital for getting attention on issues including violence against women. She said, “I don’t think a zoom rally is really going to have the same impact” as numbers of people standing together to show their support… (If governments) commit to action, the rallies won’t need to happen.” She said that people are limited in their choices for right now and that if someone could come with a suggestion that was just as effective protest, she was sure people would consider it.
While they did not endorse the protest, ANU Professor and past Leader of the Liberal Party John Hewson and Professor of Nursing and past Chief Nurse for the NSW Government Mary Chiarella both said they understand Black Lives Matter concerns and that the protest could have been avoided if the NSW government had made moves to address those concerns. They also pointed out events that could carry more risk are allowed while protests are not. “The inconsistency in the application of the rules is what is going to cause problems,” said Hewson.
A deeper injustice
Underlying this debate is a deeper issue of injustice. Last week, Gadigal elder Aunty Rhonda Grovenor-Dixon told the media that she would march on the land occupied by her ancestors for thousands of years whether the court agreed or not. Her land was never ceded to the British government, which unleashed a pandemic of disease and racism on her land. The Gadigal elder and her daughter Nadeena Dixon welcomed Leeton Dungay and her family and all their supporters to join her on a march. Yesterday, she was driven from her land by a large army of police without even being consulted. The anger and sense of indignity that accompanies the contradictions in policies, the failure to hold anyone accountable for 437 Aboriginal deaths in custody and cruelly high rates of incarceration will continue until this legal, political and moral injustice is resolved,
Police Commissioner Fuller and his force could so easily have sat down with the organisers and attempted to negotiate a solution. Instead, they preferred to use overwhelming force to smother a protest. But they have not won the debate. And while the warriors of the Dunghatti Dungay family will return to their home at Kempsey, they will be back.