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The state’s top court has struck down laws rushed through parliament by the Minns government to restrict protests in Sydney after the Bondi terrorist attack.
The decision is likely to prompt calls for police to drop criminal charges laid against protesters at the Town Hall demonstration during Israeli President Isaac Herzog’s visit to Australia. However, the ruling does not automatically invalidate those charges.
Thousands of demonstrators clashed with hundreds of police on February 6 in a bloody and chaotic confrontation, and dozens of charges were laid against protesters.
A trio of activist organisations, including the Palestine Action Group, asked the NSW Court of Appeal to strike down the laws, which gave the police commissioner the power to make a declaration restricting all protests in a geographical area for a specific time after a suspected terrorist act.
The challenge was filed before the protest, but the hearing took place in its aftermath.
The protest groups argued the laws fell foul of the implied freedom of political communication in the Commonwealth Constitution.
Restrictions covering the Sydney CBD and eastern suburbs were in place during Herzog’s visit, and bolstered the existing powers of police.
In a decision on Thursday, the court – Chief Justice Andrew Bell, Court of Appeal President Julie Ward and Justice Stephen Free – declared the laws were invalid because they “impermissibly burdened” the implied freedom of political communication.
Before the judgment was released, Premier Chris Minns had said he did not regret introducing the legislation, which he described as crucially important in navigating a “difficult summer”.
David Hume, SC, acting for the protest groups, told the court in February the laws were “fundamentally over-broad” and “they use a sledgehammer to seek to crack a nut”.
“The commissioner may be worried about protests in relation to the terrorist incident … but protests in relation to entirely unrelated topics that generate no risk are caught,” he said.
Under the new laws, passed 10 days after the Bondi massacre on December 24, a public assembly restriction declaration (PARD) may be made by the police commissioner for up to 14 days, and may be extended for up to 90 days.
The concurrence of the police minister is required. The power to declare restrictions on protests may only be made in a terrorism-related context, but protests unrelated to the alleged terrorist act are captured.
Before making a declaration, the police commissioner must be satisfied the holding of protests in the area would be likely to cause “a reasonable person to fear … harassment, intimidation or violence” or for their safety, or to cause “a risk to community safety”.
When a declaration is made, as it was for Herzog’s visit, it displaces an existing legal mechanism for authorising or prohibiting protests on a case-by-case basis.
Under the existing laws, a protest is considered an “authorised public assembly” if organisers serve a notice on NSW Police at least seven days before the protest, and it is not prohibited by a court.
When a protest is authorised, participants have a relatively narrow immunity from criminal liability for certain acts related to the protest, such as blocking traffic. This is not a licence to engage in criminal activity.
The commissioner’s declaration meant the protesters did not have this immunity.
A trio of barristers acting for the state of NSW, headed by Brendan Lim, SC, had argued in written submissions to the court that the laws were a “modest extension of police powers”.
“That modest extension is amply justified by the apprehended effects of mass public assemblies on community safety and social cohesion in the aftermath of the Bondi Beach antisemitic terrorist act,” the submissions said.
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Jessica McSweeney is a reporter at The Sydney Morning Herald covering state politics and urban affairs.Connect via email.From our partners
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