By Paul Gregoire and Ugur Nedim
The NSW Police Force announced on 3 October 2025 that it would be challenging the notification of a public protest lodged by Palestine Action Group, which sought to hold a public rally calling for an end to the Gaza genocide two years after it commenced, as the agency cited public safety issues in respect of a rally that would begin in Hyde Park North and end at the Sydney Opera House forecourt.
In seeking a prohibition notice against the protest on its then planned route to the Opera House, the police commissioner raised safety concerns over an expected 40,000 marchers ending up in an effective cul-de-sac, with limited means of egress, or capacity to leave, and further, the three-justice bench of the NSW Court of Appeal (NSWCA) noted, the forecourt has a restriction of 6,000 people.
A Notice of Intention to Hold a Public Assembly, or a Form 1, is a process that allows protest organisers to provide warning to police that a procession is planned, which is automatically accepted if the notice is provided more than seven days prior to an event and NSW police doesn’t challenge it, and if a protest is approved, then participants are immune from prosecution for taking part.
The first three defendants on the day were the co-signatories on the Form 1: PAG’s Amal Naser, Students for Palestine’s Shovan Bhattari and Jews Against the Occupation ‘48’s Michelle Berkon.
The fourth defendant, however, was the Sydney Opera House Trust, which sought to prevent the march from ending in the Opera House forecourt for safety reasons and as it is not actually a public place. The trust asserted that if the protest marched to the forecourt, it would have to close operations.
The three lead defendants pointed out that the last two years of Palestinian protests in Sydney “have been largely peaceful”. However, as NSW Chief Justice Andrew Bell and Justices Ian Harrison and Stephen Free found, none of the past protests had involved the Opera House forecourt.
Issues with the forecourt
The Opera House Trust acting CEO told the court that potential issues that could arise from a protest of at least 10,000 descending upon the forecourt, included instances of overcrowding, crowd surges and crowd crushes, medical incidents, impediment of emergency vehicles, obstruction of ingress and egress routes and potential breaches of permissible means of demonstrating in the forecourt.
Naser raised events from last century that were held in the Opera House forecourt that involved more than the asserted 6,000 person limit, however the court heard that more recent evidence reflects the limit. Another issue raised was that traditionally, if the Opera House forecourt was going to have such a surge in numbers, those entering would first be scanned by security.
The Royal Botanic Gardens and Domain Trust also raised issue with such a crowd moving through the areas it maintains, along with the potential for malicious damage, while NSW police assistant commissioner Peter McKenna told the NSWCA justices that he was concerned 100,000 people could turn up in the forecourt and if the march instead went through the CBD, less people would show up.
McKenna listed more issues, including the procession route, Macquarie Street, being the only emergency vehicle ingress, or capacity to enter, that crowd crush points may develop, inadvertent property damage and antisocial behaviour could occur, the ability for police to give directions would be limited, along with the massive cost of policing.
Concerns were also raised about the issue of crowd dispersal through the narrow streets nearby the Sydney Opera House.
The Form 1 process
Part 4 of the Summary Offences Act 1988 (NSW) (the Act) contains the law pertaining to holding public assemblies in NSW, with section 22 of the Act, defining a public assembly as “an assembly held in a public place”, which includes “a procession so held”, while a public place is considered to be a “public road, public reserve or other place which the public are entitled to use”.
Section 23 of the Act provides that a public assembly is authorised if a signed Form 1 has been served to the NSW police commissioner that notes the public assembly date, time and location, the route of any planned march, its purpose and the number of expected participants.
The public demonstration is further understood to be approved if the commissioner provides notice of approval, or if the Form 1 was lodged more than 7 days prior to a public protest, it is understood to be approved if a court has not issued a prohibition order to prevent it, or otherwise, if the Form 1 presented provides under 7 days’ notice, the public assembly requires court approval.
Section 24 of the Act provides that participants in a protest that’s been authorised to proceed are not guilty of any offence “relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place”.
However, section 25 of the Act permits the NSW police commissioner to apply to the NSW Supreme or District Court for a prohibition order against a protest that involves the presentation of a Form 1 with more than seven days’ notice. This cannot take place unless the police and organisers have met to discuss the matter first, and that any consideration organisers have raised has been considered.
As for Form 1s lodged within 7 days of a public assembly occurring and the organisers requiring authorisation to provide immunity against obstruction offences, section 26 of the Act maintains that if an individual lodges the form and the commissioner does not notify them of any objection, they must then apply to the court for approval for the event to take place.
The determination of the NSW court in respect of a section 25 or 26 decision is final and cannot be appealed, according to section 27 of the Act, and only one application can be made to the courts in respect of the one planned public assembly.
The determination of the court
In handing down their decision, the three NSWCA justices underscored that “facilitating political expression in the form of public assemblies is a matter of fundamental importance and public interest”, and they further noted that with the then current Form 1 being deliberated upon, organisers were sincere in their humanitarian concerns in respect to holding the event.
“The court is unanimously of the view that, in view of the likely numbers estimated by the first defendant to participate in the procession and public assembly and given the route and in particular the proposed destination of the procession and its capacity and physical constraints, the public safety risk to participants and other members of the public is extreme,” their Honours said on 9 October.
The NSWCA justices further noted that the risk would escalate if the estimated numbers of participants exceeded expectations, which is what happened when PAG organised the 3 August 2025 March for Humanity across the Sydney Harbour Bridge. The subject of an unsuccessful court challenge, the Harbour Bridge march saw an expected 50,000 marchers surge to up to 300,000.
The NSWCA was concerned about the risks of large numbers arriving at the Sydney Opera House and then not immediately dispersing in the aftermath of the event. PAG considered they would likely leave, however the justices thought that there would be a high risk, if not a probability, that participants would rather stick around.
Their Honours found that while PAG organisers validly raised their past events as proceeding safely, with good cooperation with police, this couldn’t be guaranteed on the route to the Opera House, especially with the new logistics involved. The justices further noted that there was a paucity of evidence around the specific measures that PAG marshals would be undertaking on the day.
“The proposed public assembly will involve a significant and unacceptable risk to public safety,” their Honours noted in their 9 October 2025 final findings. The justices further outlined that if the procession were to proceed, it would put a significant burden on the Sydney Opera House Trust.
On 9 October 2025, their Honours ordered that the Palestine Action Group march from Hyde Park North to the Sydney Opera House on 12 October was prohibited, and no order was given in respect of costs.
Main image: Palestine Action Group spokesperson Amal Naser was the first defendant in the successful challenge of the plan for a pro-Palestinian protest to march on the Sydney Opera House. Naser addressed the crowd at the PAG rally on 12 October 2025, which instead marched to Belmore Park.
