Sydney Opera House: Will three judges allow another anti-Israel protest in front of a national icon?

Fantasy or fact? Organisers of a pro-Palestinian, anti-Israel march to the Sydney Opera House Sunday — one likely to attract global coverage — assured three of the State’s top judges on Wednesday the protest would be little more than a weekend walk in the park.

A senior police officer, tasked with convincing the court to ban the event, which is already advertised online, did not try to hide his cynicism. “It has disaster written all over it if you ask me,” Assistant Commissioner Peter McKenna told the NSW Court of Appeal.

The court must balance the threat to public safety with the right to protest, which the police insist they are dedicated to protecting — as long as no lives are placed at risk.

Through detailed questions put to Mr McKenna by the protesters’ barrister, Felicity Graham, the proposed structure of the protest emerged. An expected 40,000 people would gather in Hyde Park on the edge of central Sydney. Guided by volunteer marshals, they would be ushered along Macquarie St, past Parliament House, in groups of about 5000 every ten minutes.

On reaching the Opera House’s granite-lined forecourt, they would not stop, according to the lawyer, Ms Graham. Structural engineers have said the area should not support more than 6000 people, which is why the protesters will, theoretically, walk straight out of there with barely a pause to call out “Free Palestine!”

Emergency access

Mr McKenna, a local veteran of Middle East demonstrations, spoke with dread about the prospect of hundreds, or perhaps thousands, of people trying to leave the area along colonial-era steps covered in moss. Apart from the safety risk, what would the police do if there was an emergency deep inside the crowd? How would they prevent protesters setting off flares or displaying flags of terrorist groups, which are banned?

“I don’t believe there will be 40,000 people,” the policeman told judges Andrew Bell, Ian Harrison and Stephen Free. “The Harbour Bridge was meant to be 10,000.”

The presence of some 90,000 people at that rain-soaked event on August 3 was celebrated by pro-Palestinian activists as a high point in their campaign, and quickly followed by formal recognition of the state of Palestine. Police said a catastrophe was only avoided by a high-risk decision to send marchers back over the bridge once they crossed to prevent a crush at the north end.

The popularity of iconic-venue protests, forecast clear skies and official diplomatic support from Canberra for the Palestinians raises the prospect the would-be protest could almost be as popular as Crowded House’s farewell concert there in 1996.

Cul-de-sac

Even Chief Justice Bell was confused by the promise that thousands of marchers would leave as soon as they arrived. “I don’t understand how they could disperse from what is essentially a cul-de-sac,” he said.

Ms Graham said one route would be a boardwalk between the forecourt and Circular Quay. “That’s full of tables and chairs,” Justice Bell said.

There is an added complication. The area is under the control of the Sydney Opera House, which intends, according to evidence submitted to the court, to conduct security screening of each protester when they cross onto its property.

The measure is standard protocol for outdoor events, according to acting chief executive Jade McKellar, and requires X-ray machines and bag inspections. The result would presumably be one of the longest waits for entry in the building’s history.

The idea prompted Ms Graham to ask the obvious question. “It’s impractical isn’t it?” she put to Mr McKenna, the policeman.

“Forty to 50,000 people is impractical,” he replied.

The genocide question

While the judges grapple with the practicalities of crowd control, they are being asked to decide upon a question of profound historical and philosophical importance: does Israel’s war against Hamas constitute genocide?

Palestine Action Group, the organisers, sought the declaration to bolster their argument that the protest is necessary to pressure the government to act on an international obligation to prevent mass murder.

“It goes to timing,” Ms Graham said. “It goes to urgency. The genocide is ongoing. Every day means more people are being killed.”

Australia does not accept Israel is trying to eliminate the residents of Gaza. A barrister for the NSW government and police, James Emmett SC, told the judges they did not need to make a call either way. It is enough to accept that’s how the protesters feel.

“It’s accepted as a genuinely held belief,” he said. “It is not useful for the court to make an assessment.”

Hanging over the hearing, barely mentioned but not forgotten, was the celebration outside the beautiful building on October 9, 2023, by a group of Arab men who some thought chanted “gas the Jews” but authorities determined yelled “where are the Jews”.

Appointed by the state’s last Liberal Government, Justice Bell is mooted by legal insiders as a High Court candidate. While politics can never be allowed to influence the bench, it would be difficult to imagine the politically astute judge is unaware of how embarrassing a Hamas-sympathetic display in front of a national symbol would be to Labor governments in Sydney and Canberra.

Either way, he promised a prompt decision.