Organisers of a Black Lives Matter protest have lost their appeal against a supreme court ruling that the event is a "prohibited public assembly".
The rally is being organised by the family of David Dungay Jr, who said before the appeal was heard that the rally would go ahead unless the guards involved in his death are prosecuted.
David Dungay Jr died in custody in Long Bay Jail in 2015. The Dunghutti man was restrained by five guards who were attempting to stop him from eating biscuits. He said, "I can't breathe" 12 times before he died.
A coronial inquest into his death found none of the guards should face disciplinary action. His family is now asking for the NSW Premier Gladys Berejiklian to ask SafeWork NSW and the director of public prosecutions to investigate whether charges should be laid against the guards.
Ms Berejiklian said at a press conference on Monday that now is not the time for protests, and urged people not to attend Tuesday's rally, which was declared a prohibited public assembly by the supreme court on Sunday.
“Pick a different way to get your point across. Conducting a protest at this time is highly irresponsible,” she said.
“We only have to have a look at what’s happening in Victoria, to realise that in a few weeks, if we let our guard down, that could be us – this thing takes off very quickly and we have to be on high alert.”
'Need to see action'
Aboriginal rights advocate, Paddy Gibson, who is assisting the Dungay family in organising the rally, told the ABC on Monday morning that organisers planned to go ahead with the rally, with appropriate safety precautions in place, unless the Dungay family see justice.
"They have been clear. If they see action, they will change their plans," he said.
"They want the guards prosecuted. It is fair enough to say if you kill someone on camera you should be prosecuted.
"They said they will put off the rally if the Department of Public Prosecutions prosecute this man.
"Sympathy is not enough. We need to see action. We need to see some change."
On Monday morning, Prime Minister Scott Morrison described attending the rally as "breaking the law".
“That is what it is. We are all subject to the law. I would encourage everybody to follow the law,” he said.