The last-minute go-ahead given to Sydney's Black Lives Matter rally came down to a narrow legal point rather than competing public interests about protests and the COVID-19 pandemic.
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Less than 15 minutes before the march against racism and Aboriginal deaths in custody was due to begin on Saturday, the NSW Court of Appeal declared it an authorised public assembly.
Late on Friday in the Supreme Court, Justice Des Fagan made findings about the Summary Offences Act before declining an oral application to approve the rally, because it breached coronavirus restrictions.
But in reasons published on Monday, the Appeal Court ruled Justice Fagan erred in those findings which related to organiser Raul Bassi's application to hold the rally on June 6.
Chief Justice Tom Bathurst, sitting with Justices Andrew Bell and Mark Leeming, said Mr Bassi gave on May 29 the required seven days' notice to the NSW Police Commissioner of a proposed assembly of up to 50 people.
But after realising many more were likely to attend, Mr Bassi suggested to police on June 4 the number of protesters would be up to 5000 and they would convene at Sydney Town Hall and proceed to Belmore Park.
The Appeal Court found Justice Fagan erred in finding this was a new application and the required seven days' notice hadn't been given.
The judges found Mr Bassi's suggestion was an amendment to the May 29 application, although the particulars of the assembly had changed significantly.
The Summary Offences Act expressly allowed the "particulars" to be amended by agreement, which in fact was given in a police email on June 4, according to the court.
The court also found Mr Bassi was "given an unequivocal indication that the public assembly in the amended form proposed would occur without opposition from the Commissioner".
Police later changed their view and opposed the rally.
"No criticism should be made of that change of stance; we live in challenging and uncertain times where the exigencies of public health are of critical importance and the situation is no doubt extremely fluid," the court said.
During Saturday's urgent hearing at the "heel of the hunt", the lawyer for the police tried to launch a cross-appeal to ban the rally under the Summary Offences Act.
But the Appeal Court said this cross-appeal was made orally within 20 minutes of the rally's starting time and did not meet any of the required pre-conditions for mounting such an appeal.
Australian Associated Press
