The NSW court of appeal has effectively upheld an earlier ruling that the protest is a prohibited public assembly under current public health regulations.
Demonstrators will now risk arrest and fines if they breach coronavirus restrictions on mass gatherings when attending tomorrow.
Chief Justice Tom Bathurst said he would provide his reasons at a later date, but that the appeal had to be dismissed.
Organisers say they have a Covid-19 safety plan. Attendees are being asked to avoid public transport, wear a mask and “practice thorough hand hygiene”. Protesters will be expected to stand at least 1.5m 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.
Earlier, the NSW Police Minister, David Elliott, described the protest going ahead as “the most dangerous act during a pandemic”.
Black Lives Matter rally organisers said earlier they would consider calling off Tuesday’s protest if the New South Wales premier commits to asking SafeWork NSW and the director of public prosecutions to investigate whether charges should be laid against the guards involved in the death in custody of David Dungay Jr in 2015.
The 26-year-old Dunghutti man died after five guards rushed his cell to stop him eating biscuits, dragged him to another cell, then held him face down and him injected with a sedative. In harrowing footage shown to the court and partly released to the public, Dungay said 12 times that he couldn’t breathe, before losing consciousness and dying.
Updated