Waves of jubilation swept over the tens of thousands of people gathered at Sydney Town Hall on 6 June, when it was announced just minutes before the Black Lives Matter protest was about to take place, that the appeal of the Supreme Court prohibition of the rally had been overturned.
Over the loudspeaker, special mention was made of the lawyers who’d successfully brought the appeal over the line on the Saturday afternoon. And all those present showed genuine thanks to these – at that point – unknown legal professionals, who’d effectively legalised the demonstration.
About two hours later, that same mass of people covered the whole of Central’s Belmore Park, as they knelt down on one knee to remember the over 400 Aboriginal people who have died in custody since 1991 – a solemn moment that perhaps would never have taken place without the appeal.
And not long later, as the crowd was beginning to disperse, a photo of the two lawyers that had successfully argued the case started to appear on social media posts with accompanying messages of thanks.
Those two barristers were Stephen Lawrence and Felicity Graham.
A last-minute appeal
NSW police commissioner Mick Fuller had been notified that a Black Lives Matter protest of around 50 people was set to take place on 6 June via an email that was sent by Indigenous Social Justice Association (ISJA) secretary Raul Bassi on 29 May.
Though, halfway through the following week, it became obvious that the rally meeting point needed to be changed, as around 5,000 people had indicated on social media that they’d be attending.
So, organisers met with the police and discussed the changes, which were later verified in an email.
Then, on the day before the rally was to take place, the police commissioner moved to have it banned by the NSW Supreme Court. Justice Desmond Fagan ruled it couldn’t go ahead. And while the media mentioned COVID-19 as the reason, the technicalities behind the decision weren’t cited.
But, despite the prohibition, the entire foreground of Sydney Town Hall was covered with demonstrators. And Lawrence and Graham were called in for the last-minute appeal by solicitor Peter O’Brien, who was in Sydney at the courthouse with barrister Emmanuel Kerkyasharian.
Incidentally, Lawrence, Graham and Kerkyasharian are the three barristers, who appear on the successful monthly podcast The Wigs, which, along with Black Lives Matter, has recently covered legal topics such as the Pell appeal, the Smethurst warrant and those controversial COVID laws.
Stephen Lawrence is a barrister at Black Chambers. The lawyer spent the first five years of the last decade working for the Aboriginal Legal Service (NSW/ACT). And the current Country Labor Deputy Mayor of Dubbo has also spent time working abroad in the Solomon Islands and Afghanistan.
Sydney Criminal Lawyers spoke to Mr Lawrence about how it felt to save all those BLM demonstrators from potential arrest, what was argued to enable the overturning of the protest ban, and why everyone’s talking about The Wigs podcast.
Firstly, on 6 June, you and Felicity Graham led the successful challenge of the NSW Supreme Court decision to ban the Black Lives Matter protest.
But, on that day, the two of you weren’t even in Sydney, but rather you were out in Dubbo. How did that all work?
We were able to appear from Dubbo because of the technological changes and improvements to the court system that have been brought in as a consequence of the pandemic.
We became involved because we were briefed by solicitor Peter O’Brien, who had appeared along with Emmanuel Kerkyasharian in the Supreme Court proceedings.
Barristers don’t knock back briefs as a general rule, because of the cab rank rule. But, this was a brief I was particularly happy to receive.
About 15 minutes before the rally at Sydney Town Hall was about to take place, the crowd gathered went wild when it learnt the news that the original decision had been overturned and the march was legal.
What was the crux of the matter that led the Court of Appeal justices to reverse the original decision?
Under the Summary Offences Act in NSW, if you serve notice on the police outside of seven days of a protest, and the police don’t secure an order from the Supreme Court to disallow it, then the protest is deemed by the operation of the Act to be an authorised public assembly.
In this case, the error that Fagan J made was he held that an amendment to an application that was made outside of seven days meant that it was an entirely new application.
The Court of Appeal held that it was wrong: that in fact it was one application. And that application having been served on the police outside of seven days, in circumstances where the police had not obtained a contrary order meant that by simple operation of the Act, this was an authorised public assembly.
So, that was the crux of the matter. It turned on a legal technicality about service of the application to protest.
There were tens of thousands of people gathered at Sydney Town Hall ready for the demonstration while the appeal was underway. In the end, you saved them all from potential arrest, imposed fines and criminal charges.
How did it feel to save all those people who were so determined to take a stand that day?
Very satisfying. It’s uncommon as a barrister to be involved in a case that has such an immediate consequence and such a high degree of public interest.
One can have one’s different views on whether people should be protesting at this particular time. But, ultimately, this court decision meant the protest was safer, more orderly and more able to powerfully express political opinion.
For those reasons, I found it enormously satisfying to have had the privilege to be involved in it.
The Black Lives Matter rally highlighted the injustices that First Nations people suffer at the hands of the Australian criminal justice system. You spent the first half of the last decade working for the Aboriginal Legal Service NSW/ACT, out in the west of the state.
What did those years tell you about the relationship between Aboriginal people and this state’s criminal justice system?
That the criminal justice system has a tendency to hit the weakest people the hardest. And that our criminal justice system, which is supposed to protect community safety is in many ways doing the opposite.
It is entrenching social dysfunction. It is increasing people’s risk of criminal offending. And it is causing harm in many ways.
It is time to reconceptualise the purpose of our criminal justice system. And it is high time to devote other necessary resources to stop people entering the criminal justice system in the first place.
Also, over the last year, you, Felicity Graham and Emmanuel Kerkyasharian have been presenting a monthly podcast called The Wigs, which is Australia’s first podcast featuring practising barristers. Can you tell us a bit about that?
The three barristers on The Wigs – myself, Felicity and Emmanuel – happen to be the three barristers that were briefed in the Black Lives Matter protest litigation. The host of the show is a fellow called Jim Minns, who’s also the fantastic producer.
The purpose of The Wigs is to give people, including non-lawyers, an insight into the operation of the justice system, and to get important ideas and critiques of the system out there for public discussion, particularly the criminal justice system.
For a period, in the aftermath of the Black Lives Matter case, we were actually Australia’s number one charting podcast.
So, we certainly sense a lot of interest out there in the community in better understanding the justice system. And we’re hoping to fill that space.
So, how do people engage with the podcast?
It’s available through all the websites where people access podcasts. They can find us through Google. We’re hosted on Whooshkaa, which is the platform we use.
But, it’s pretty easy to find us on iTunes and Spotify – all of the main programs.
And lastly, the Black Lives Matter protest that you saved was the largest demonstration in decades drawing attention to the plight of First Nations people in NSW.
What sort of reforms would you like to see come about as a result of it?
We need to decriminalise a whole range of conduct that the criminalisation of serves no valid social purpose.
We need to look closely at a whole range of so-called street offences, including drug possession and offensive language.
We need to meaningfully invest in drug treatment services, particularly in regional Australia.
In my community of Dubbo, we don’t have a drug detox centre. And we’re an epicentre of Aboriginal overrepresentation in the criminal justice system.
There is something so fundamentally wrong with a society that will send young people into incarceration, yet, won’t even provide a simple drug detox and rehab centre.
We as a community create so much pain and misery for ourselves through not critically examining the operation of the system, and reconceptualising the system in simple, but fundamental, ways that could dramatically reduce the amount of people that we lock up, and the amount of social harm and misery that comes about as a consequence.