The matter has been adjourned until February 1. While this is several days after the protest is due to occur, a favourable outcome for the rally organisers could potentially invalidate any legal action taken against protesters on Tuesday.
Protesters are doubling down on their intentions to go ahead with the rally even in the absence of an exemption and despite warnings of fines for those who breach public health orders.
Protest co-organiser Lizzie Jarrett said on Monday she had repeatedly contacted the offices of NSW Premier Gladys Berejiklian, Mr Hazzard and Police Minister David Elliott in the lead-up to the planned event but had not heard back.
“We have a very safe COVID plan, QR codes, masks, sanitiser, all the normal things that you have to do when you walk inside Westfield right now, when you go to the cricket, when you go to netball,” she said.
“Everything we have done is what everybody else is doing out there. So why is it that the Aboriginal people are always the ones being called the health risk, when the real health risk right now to me and my people is racism?”
Under the public health orders, protests within Greater Sydney are limited to a maximum of 500 people, and 3000 people outside Sydney. On Facebook, 3100 have indicated they will attend the rally.
Lawyers acting on behalf of the event organisers sent an email to Mr Hazzard on Friday, requesting an exemption that would allow more people to gather.
The law firm, Ridge & Associates, argued there were a series of rallies in 2020, including the Black Lives Matter protest, from which “there has not been a single reported case of community transmission arising out of that gathering”.
“The organisers will apply similar COVID-19 safety rules and they have prepared a plan based on the NSW Health template for outdoor protests,” the email, seen by The Sydney Morning Herald, reads. “The organisers anticipate that the cohort of attendees will be similarly compliant and peaceful.”
The email outlines the safety plans, which include the wearing of masks for all attendees, COVID marshals and the use of QR codes.
Paul Silva, the nephew of David Dungay jnr – a Dunghutti man who died in custody after he was held down by Corrective Services officers in 2015 – encouraged people to turn up, saying the rally marked almost 250 years since the invasion.
“Come out tomorrow to the Sydney Domain and get an insight on what this day really means to the First Nations people,” he said.
The Aboriginal Legal Service is setting up a hotline for any rally attendees who may need advice on Tuesday.
Earlier on Monday, Ms Berejiklian urged people to adhere to the public health orders, saying the government’s “strong preference” was for people to stay at home.
“I respect the strength of feeling that people have on these issues, but the health orders are there to keep everybody safe.”
Mr Elliott said police would enforce the orders, with fines issued to people who breached them.
“I can’t believe any organisation, let alone one that pretends to advocate for Indigenous rights, would say: ‘let’s put aside the risk of COVID-19, let’s breach public health orders, let’s get together despite the pleas of the community asking them not to get together’,” he told 2GB radio station, which is owned by Nine, the publisher of this masthead.
He denied there was any political motivation in opposing the rally.
“NSW Police have never told people they can’t get together because the position they’re advocating is unpalatable. We encourage people to express those views; that’s what sets us apart from other countries,” he said.
“Anyone who’s claiming it’s racial, that’s absolutely nonsensical.”
With Mary Ward and Pallavi Singhal
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Angus Thompson is an Urban Affairs reporter for The Sydney Morning Herald.
Laura is a crime reporter for The Sydney Morning Herald.