Organisers have vowed Tuesday’s Black Lives Matter rally will go ahead in Sydney despite the New South Wales court of appeal effectively upholding an earlier decision that the protest was a prohibited public assembly under the current public health regulations.

The appeal court rejected a legal challenge by the organisers based on an argument that supreme court Justice Mark Ierace did not have the authority to prohibit the rally.

Demonstrators will risk arrest and fines if they breach coronavirus restrictions on mass gatherings when attending Tuesday’s rally.

“I am going to keep marching until we get justice for my son,” Leetona Dungay, whose son David died in prison custody in 2015, said outside the court. “We buried him in Mother Earth, and that’s where I’ll walk tomorrow and every day until charges are laid agains the guards involved in his death.”

The 26-year-old Dunghutti man died after five guards rushed into his cell to stop him eating biscuits, dragged him to another cell, held him face down and injected him with a sedative.

In footage shown to the coroners court previously and released to the public in part, Dungay said 12 times he couldn’t breathe before he lost consciousness and later died.

Organisers said they now intended to hold the rally in the Domain – instead of outside Town Hall – where people can keep the required 1.5 metres distance from one another and abide by the state’s coronavirus health regulations.

“We will be there in the Domain tomorrow … it isn’t illegal to have your lunch in a park,” co-organiser Paddy Gibson told reporters after the ruling.

“We have heard the heavy police warnings and we intend to do everything we can to make sure that people keep their distance, and are not seen to be gathering in groups of more than 20.”

They also plan to deliver a petition to NSW parliament signed by more than 91,000 people calling for the state’s director of public prosecutions to investigate whether charges should be laid against the guards involved in the death of David Dungay Jr.

The petition asks the NSW attorney general to refer the matter to the DPP and SafeWork NSW.

SafeWork NSW has twice ruled out holding an investigation into Dungay’s death in Long Bay prison hospital in 2015.

Black Lives Matter rally organisers previously said they would consider calling off Tuesday’s protest if premier Gladys Berejiklian committed to asking the DPP and SafeWork NSW to investigate whether charges should be laid against the guards.

The NSW attorney general, Mark Speakman, has been contacted for comment.

Organisers said they have a Covid-19 safety plan for the rally. Attendees are being asked to avoid public transport, wear a mask and “practice thorough hand hygiene”. Protesters will be expected to stand at least 1.5 metres apart at all times and anyone who feels at all unwell or has any cold or flu-like symptoms is being asked to stay at home.

All attendees will be asked to provide contact details for tracing purposes and anyone who develops symptoms in the two weeks following the rally must be tested and let the organisers know.

Before the appeal was dismissed, the NSW police minister, David Elliott, described the protest as “the most dangerous act during a pandemic” and NSW police “strongly urged” anyone planning to attend “to reconsider their plans”.



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