Senior police cited struck-out law during Town Hall protest, raising doubts over government claims

Court documents from cases against protesters at a chaotic Town Hall rally show a law found to be unconstitutional by NSW’s top court was used to justify some police actions, contradicting claims by the Minns government that the powers were not used.

The documents, obtained by The Sydney Morning Herald, also raise questions about whether some of the dozens of charges laid against protesters at February’s anti-Herzog demonstration will be found invalid.

On Thursday, the NSW Court of Appeal ruled Labor’s controversial anti-protest laws, which it passed after recalling parliament on Christmas Eve just days after the Bondi terror attack, were unconstitutional and invalid.

The laws gave NSW Police Commissioner Mal Lanyon the power to declare a Public Assembly Restriction Declaration (PARD), which had the effect of limiting protests following terror attacks.

The restriction could be extended every 14 days for up to three months, and was used by Lanyon to limit protests over a large area including the CBD and eastern suburbs until February.

Activists from the Palestine Action Group and Blak Caucus challenged the laws in the Court of Appeal, arguing they infringed upon the implied right to freedom of political communication.

The court agreed, noting the “broad and undiscriminating nature” of the restrictions in a written judgment.

Lawyers for the activists said the decision placed a cloud over the dozens of arrests made at a Town Hall protest held during Israeli President Isaac Herzog’s visit to Australia.

Thousands of demonstrators clashed with police in the bloody and chaotic confrontation on February 9 in the Sydney CBD. Police have charged 25 people with various offences related to the protest, and lawyer Nick Hanna, who was part of the court challenge, has said he expects more to follow.

But the Minns government insists the powers used by police on the night of the rally came from a separate Major Events Declaration, which gives officers broad powers to close areas down and move protesters on.

The Supreme Court rejected a separate challenge to those restrictions before the protest.

On Friday, NSW Treasurer Daniel Mookhey told ABC radio the PARD was not used by police in the arrests.

“That wasn’t the law that was being used for that event. The law that was being used for the visit from the president of Israel was the Major Events Act,” he said.

“The Supreme Court itself says that the arrest powers that were exercised by police that evening were the Major Events Act. So I do think it’s an important distinction to draw.”

But while protesters have been charged under a series of laws, including the Major Events Declaration, court documents seen by the Herald show the PARD was cited by officers.

One fact sheet stated that the PARD had “revoked” any previously issued permit to hold a march, and says a “wider group” of protesters were issued a move-on direction “pursuant to their contravention of the PARD”.

However, it is understood that more detailed brief of evidence documents focus mainly on the Major Events Declaration.

Video recorded by the Sydney Morning Herald on the night of the protest, as well as statements by police after the protests, also raise doubts about the government’s claims.

One video shows a senior police officer invoking the PARD when urging protesters to disperse, and denying requests from Greens MPs Sue Higginson and Jenny Leong to let the march to parliament go ahead.

“Mal [Lanyon] was very clear. We’re not facilitating a march,” Superintendent Paul Dunstan says in the video. “It is in breach of the PARD. The PARD is in place for a reason, it is staying as it is.”

After speaking to Dunstan, Higginson told the Herald she called Lanyon and urged him to let protesters march.

Higginson said during the conversation she told the commissioner conditions at the rally had become “dangerous” and it would be safer to let them march.

Lanyon rebuffed her request and said on “two or three occasions” that he was “going to enforce the PARD”, Higginson said.

“We had that conversation. He’s an approachable police commissioner, he’s an honest man, and we had a frank conversation,” she said.

“I pleaded with him to let people safely disperse and that was his response.”

Lanyon confirmed he spoke to Higginson, but said he told her he would enforce both the Major Events Declaration, which had been upheld that day by the Supreme Court, and the PARD. Lanyon said he told her both of those decisions were to ensure community safety.

Police themselves have invoked both the PARD and the Major Events Declaration on multiple occasions since the rally.

Later on the night, as protesters tried to march, a different senior officer officially invoked powers under the Major Events Act, declaring parts of George Street closed and warning protesters to disperse or face arrest.

The government has said it stands by the laws, despite the court’s decision.

“Bear in mind, these were laws that had to be introduced in the aftermath of the worst terror attack NSW and Australia has experienced,” Mookhey said.

“The community did need a circuit breaker from a lot of the tension points that were building up.”

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.