Defending Black Lives Matter: An Interview With Barrister Felicity Graham

“Felicity Graham is a gun,” declared Black Lives Matter rally organiser Paddy Gibson, as he stood out the front of the NSW Supreme Court on 24 July.

At that moment, Gibson had just left the courtroom, where the Sydney barrister had been challenging NSW police commissioner Mick Fuller’s attempt to have a BLM protest prohibited. On that occasion, Ms Graham was arguing the case alongside fellow barrister Craig Longman.

It was the third time over recent months that Graham had been defending the right of BLM organisers to protest, as NSW police were pushing to deny voice to the movement that in large part is a response to the excessive force used by law enforcement in policing First Nations peoples.

The first hearing involved Graham and barrister Stephen Lawrence appealing a court order ruling a 6 June BLM rally couldn’t go ahead. The pair brought the win across the line just moments before thousands of protesters were about to break the rally prohibition and take to the CBD streets.

The second proceedings involved Ms Graham successfully arguing that a 5 July Black Lives Matter protest set to take place in Newcastle’s Civic Park should be allowed to go ahead. In that case, Justice Christine Adamson ruled in favour of “free speech and freedom of association”.

The war on protests

The third such attempt at ensuring a Black Lives Matter rally could assemble on the street in a COVID compliant manner failed, as Justice Mark Ierace ruled that the planned 28 July protest couldn’t go ahead at Sydney’s Town Hall.

Rally organisers, the Dungay family, then called for the protest to go ahead at the Domain-Djarrbarrgalli, where there would be more room for social distancing. The event was calling for charges to be laid in relation to the death in custody of David Dungay Junior.

On arrival at the Domain, the small number of protesters were met by saturation police, with more officers present than activists. And as police began arresting socially distanced demonstrators, it became clear that what was being cracked down upon was dissent, rather than any public health risks.

This message was reinforced days later, when a group of 35 police officers were reportedly deployed to break up a student rally at Sydney University that involved 50 demonstrators, who were socially distanced, most were wearing masks, and none were standing together in groups greater than the permitted 20.

Voices from the bar

Graham also makes up one third of the panel of barristers featured in the podcast The Wigs. The others being Stephen Lawrence and Emmanuel Kerkyasharian.

Hosted by Jim Minns, the monthly podcast tackles of-the-moment legal topics, making them more accessible to those not involved in the legal trade.

Currently a barrister at Black Chambers, Felicity was the principal legal officer and trial advocate at the Aboriginal Legal Service NSW/ACT (Western Region), prior to being called to the bar in 2015.

And along with defending the BLM movement, she’s been vocal about the crackdown on protests.

Sydney Criminal Lawyers spoke to Felicity Graham about the three separate BLM cases she’s provided counsel to, her thoughts on the prospect of charges being laid in relation to the death in custody of David Dungay Junior, and what the ongoing suppression of protests reveals.

Firstly, last month, I spoke to Paddy Gibson, who described you as “gunning” for Mick Fuller during his attempt to shut down the 28 July Sydney Black Lives Matter protest.

Ms Graham, why did the NSW Supreme Court decide that the BLM protest should be outlawed, as, in the end, it had permitted earlier rallies to go ahead?

I never like to think of myself as “gunning” for anyone, but sometimes a case demands exposing abuse of power by executive officers.

It’s important for people to understand that when a barrister acts for a client, it is their job to be a fearless advocate, pursuing the client’s best interests and in the BLM case, doing that required putting Mick Fuller’s actions under the microscope.

It is a fundamental role of the courts and lawyers appearing in them to ensure that those who wield power, do so lawfully.

One of the issues for determination in the case was whether the commissioner of police had thwarted the statutory process required by the Summary Offences Act 1988 (NSW) before a case can be brought to the court seeking to prohibit a public assembly and so, this required me to fully explore and expose the commissioner’s actions.

This included his failure to consult at all or to meaningfully consult with the protest organiser Paddy Gibson and hear what he had to say about the planned protest, his COVID-19 safety plan, and the importance of the right to protest in a democracy, before taking the matter to court.

Ultimately, the Supreme Court accepted arguments put by the police that public health considerations outweighed the public interest in protest.

This was despite the fact that the organisers had a thorough COVID-19 safety plan, which mirrored the government requirements for other large commercial and community events that are allowed to occur in NSW every day during the pandemic.

Justice Ierace also heard very powerful evidence given by Paddy Gibson about the Aboriginal elders who would be attending the event and with all their cultural authority, would be imploring the crowd to comply with the COVID-19 safety protocols.

But in the end, his Honour sided with the police and “prohibited” the public assembly planned for Town Hall and a march to parliament.

Then there were the proceedings held on 3 July, which involved you successfully arguing that a FISTT organised 5 July BLM rally could go ahead in Newcastle.

What was the crux of that matter? And why did Justice Christine Adamson rule that demonstration could go ahead?

Justice Adamson squarely dealt with what the evidence said about the actual public health risk of a protest. She then gave meaningful weight to the right to freedom of association, public assembly and speech.

Justice Adamson rejected the notion that a public political gathering could, in this day and age, be substituted by, relegated to, a social media campaign.

Her Honour stated that “If this were the case, Ms Gray would have presumably been content to communicate with others on Facebook and other social media and would not have gone to the trouble of organising the event.

Demonstrations in public spaces remain a powerful method of advancing particular causes to governments and the general community, as well as engendering a feeling of solidarity among participants and those associated with them who may be unable to be present.”

I submitted on behalf of my client that the NSW police’s attempt to prohibit this and previous protests amid the pandemic was an “entirely unsatisfactory state of affairs for a country that calls itself a democracy”, while attending sporting events in the thousands at a stadium, dining in restaurants, going to the casino, strip clubs, aquariums – the list goes on – is allowed.

In deciding to allow the protest to go ahead as “authorised”, Justice Adamson considered that it was significant that the protest was planned to take place at a time when many other activities which involve the gathering of people have been allowed under the public health direction.

Certainly, no one could accuse Justice Adamson of paying lip service to the fundamental rights of association, public assembly and speech in a healthy democracy.

As mentioned, you’ve provided counsel in all three Black Lives Matter court cases. In your opinion, why is it important that these protests do go ahead at the moment?

Many Aboriginal elders and young leaders have been vocal about this, and while I have been very proud to be one of the barristers acting in these cases for these formidable activists, my voice is not the important one on why these protests are urgent.

Justice Adamson recognised the importance of allowing black voices to be heard on the streets in public at this particular time.

Her Honour was persuaded in this view after hearing the evidence of my client, organiser Taylah Gray, a proud Wiradjuri woman and law student.

Taylah said, “The momentum that has been gained recently in Australia in relation to calls for justice for Indigenous people means the timing of the event is crucial. Whilst usually our cries as Indigenous people have remained unheard, we now seem to have the ears and support of the broader community.

But we cannot achieve real accountability on issues of racism, police brutality, deaths in custody, the mass incarceration of our people without continuing to have our voices heard loud and clear in public.”

Justice Adamson said, “To deprive such groups of the opportunity to demonstrate in an authorised public assembly would inevitably lead to resentment and alienation if the public risk concerns did not warrant it.”

It is not perhaps surprising, that after this ruling, Taylah said the court would be on “the right side of history”.

In the last case, you represented the Dungay family. Criminal barrister Phillip Boulten SC recently asserted that there’s enough evidence to justify a prosecution of the guards involved in the death in custody of David Dungay Junior.

What are your thoughts on this development?

It is often said that questions involving community standards should be left to juries to decide.

The prominent issue as I understand it in the death of David Dungay Junior is whether the force used by a number of prison guards was “reasonable” – a classic question of community standards.

Many members of the community will have seen the footage of David Dungay Junior’s last moments alive. As Phillip Boulten said, this particular death shocked the NSW public and continues to do so.

I do not know enough about the case to express a categorical opinion, but it certainly seems to me to a very large extent, that the case involves a question that should be determined by a jury applying community standards.

I can understand why the Dungay family feel let down by the system and dissatisfied that they have not had the chance to have the actions responsible for the death of their loved one assessed according to community standards by a jury.

You’ve been quite vocal on the subject of the current crackdown on protests that’s been occurring.

Lately, we’ve seen the suppression of demonstrations seeking justice for asylum seekers, for First Nations people, and most recently a group of police officers broke up a small rally of Sydney uni student demonstrators protesting job cuts.

By all accounts, the student protesters were standing in groups of less than 20 – the permitted outdoor amount – and the majority of them were wearing masks, so they weren’t posing any risk of disease transmission.

What’s your take on what’s happening with the right to protest right now?

To me the current state of affairs means three things.

Firstly, just how effective public protest can be.  Recent protests have garnered huge support across the community – not only emboldening long-time advocates, but also, demanding the attention and actions of government.

The government’s determined efforts to crack down on protests shows just how powerful public dissent is and can be.

And it seems pretty clear that attempts to suppress public speech have only elevated the voices of those seeking justice for the vulnerable and those ordinarily silenced.

Secondly, how quickly the popular consciousness can be manipulated to abandon basic rights, and how untroubled so many people are by the notion of indefinite suspension of protest and public dissent whilst commerce and social activities roll on.

Just this week, we have seen anti-government protests in Belarus as that country lurches further down the path of authoritarianism.

Crackdowns on peaceful protesters by the government there have been met by calls for international sanctions to be applied to the regime.

Here, the pandemic is being used as a device for entrenching the power of the powerful – something too many people appear untroubled by.

Thirdly, the need for a constitutional bill of rights in this country. We do not have protected rights of association, public assembly and protest in Australia.

Peaceful protest and civil disobedience will always be necessary ingredients in a healthy democracy.

We urgently need reform to protect these fundamental rights and so that we have a forum in which to meaningfully challenge government and executive overreach.

And lastly, Ms Graham, on a different note, you’re currently one of the three barristers making up the panel presenting popular podcast The Wigs.

How’s that going? What have you got coming up?

Things are going very well with The Wigs.  We have recently been the number one rated podcast in Australia.

We’re trying to make complex legal issues accessible and interesting to the general public and so far, I think we’re succeeding.

We will soon be interviewing barrister and author, Andrew Boe, about his book published this week The Truth Hurts.

Every page packs in powerful storytelling and hard hitting thoughts on our criminal justice system – delving into the cases where it fails, how they can shake our confidence in the system itself and how we often try to quarantine ourselves from the injustices of our own system.

One thing we really love at The Wigs is to hear from our listeners – with questions and suggestions for topics to tackle.

Anyone keen to get in touch can reach us on our Facebook page or on Twitter @wigspodcast.

Main photo taken outside the NSW Supreme Court. From left to right: solicitor Sidnie Sarang, Black Lives Matter rally organisers Taylah Gray and Tameeka Tighe, and barrister Felicity Graham