NSW Grapples with Dual Legal Battles: Protest Restrictions and Slogan Bans

New South Wales (NSW) is at the epicenter of significant legal and political activity, driven by new protest restriction laws and proposed bans on specific slogans. Following a terrorist attack in Bondi in December, the NSW government swiftly enacted legislation granting police temporary powers to restrict public assemblies. These laws are now facing a constitutional challenge in the NSW Court of Appeal, with activist groups arguing they infringe upon implied constitutional freedoms. Concurrently, a parliamentary inquiry is reviewing proposals to expand hate speech laws to prohibit slogans such as "globalise the intifada," a phrase that has already led to arrests and sparked intense debate over its interpretation and free speech implications.

Constitutional Challenge to Protest Restrictions

A constitutional challenge has been initiated by groups including Blak Caucus, the Palestine Action Group (PAG), and Jews Against the Occupation ‘48 against NSW legislation that limits protest actions. The challenge, initially filed in the NSW Supreme Court, saw arguments later heard in the NSW Court of Appeal. The court summons asserts that these laws are invalid, contending they "impermissibly burden the implied constitutional freedom of communication on government and political matters."

The New Protest Legislation

The new laws were introduced in December following a terrorist attack at Bondi Beach that resulted in fatalities. The legislation grants the NSW Police Commissioner discretionary authority to issue a "Public Assembly Restriction Declaration" (PARD) for up to three months after a "terrorist incident."

Key aspects of the new laws include:

• Preventing the authorization of public assemblies under NSW’s Form 1 system. This authorization typically provides legal protection from prosecution for offenses such as obstructing pedestrians and traffic.
• Granting police move-on powers at unauthorized protests.
• While not prohibiting static public assemblies outright, the laws remove the legal protections associated with authorized marches.

NSW Premier Chris Minns stated the government was "aware of the threat" of a challenge but remained "confident that the laws will withstand a constitutional challenge." He had previously characterized civil liberties concerns as "overblown."

Application and Extension of Restrictions

A 14-day PARD was initially issued on December 24, covering Sydney’s CBD, south-west, and north-west policing areas. This declaration was subsequently extended multiple times, with Commissioner Mal Lanyon citing ongoing community safety concerns. Commissioner Lanyon indicated that police would collaborate with rally organizers who complied with the new regulations.

The extended restrictions impacted planned events, including a First Nations rally organised by Paul Silva for January 18. Mr. Silva stated his intention to proceed with the march, describing the laws as "inhumane." The declaration was also active during a rally against Israeli President Isaac Herzog’s visit, an event that reportedly involved violence and led to a police watchdog investigation. The restriction was lifted following Herzog's departure.

While the specific declaration periods have expired, the legislation permits police to re-enact these restrictions following any terrorist incident globally, provided a domestic investigation is initiated and the special powers assist in apprehending those responsible.

Arguments in Court

David Hume SC, representing the protest groups, argued that the laws are extensive and not essential, impacting all protests regardless of risk. He contended they infringe upon the constitutional right to freedom of political communication and are counterproductive, as they remove a system that facilitated negotiation between protesters and police. Hume characterized the new law as granting police broad and potentially uncontrollable power.

Brendan Lim SC, representing the state government, argued that the law constitutes a "confined rolling back" of the Form 1 system's protections. He stated the law's purpose was to protect the community and enhance social cohesion by placing "sensible limits on the authorisation of public assemblies," rather than to discourage protests. Lim cited concerns from Asio regarding a "permissive climate for politically motivated violence" and the normalization of extremist views. He also argued in written submissions that pro-Palestinian protests in Sydney were justifiably constrained, impacting community security prior to the Bondi attack. (Protest organizers have denied any connection between their movement and the Bondi attacks.)

Premier Minns stated he did not regret legislating the restrictions, believing they were in the interest of NSW residents for safety. The judges of the NSW Court of Appeal will deliver their ruling at a later date.

Debate on "Globalise the Intifada" and Proposed Hate Speech Laws

Simultaneously, a debate is ongoing regarding the proposed expansion of hate speech laws. A 53-year-old woman was detained at a protest in Sydney's CBD for wearing a jacket displaying the phrase "globalise the intifada." She was later released without charges.

"Intifada" is an Arabic term meaning 'uprising,' used by Palestinians to describe their uprisings against Israel. Interpretations of the phrase differ; for some Palestinians and their supporters, it signifies resistance against oppression, while many Jewish groups and leaders view it as a call to violence against people of their faith.

The NSW government intends to expand its hate speech laws to prohibit certain phrases, including "globalise the intifada." Premier Minns has publicly described the phrase as "hateful, violent rhetoric." Under the NSW Crimes Act, it is currently an offense to publicly threaten or incite violence based on ethno-religious origin, requiring actual incitement or threat, not merely causing offense.

Parliamentary Inquiry and Submissions

A NSW parliamentary inquiry is investigating measures to prohibit slogans perceived to incite hatred.

• Submissions from the Australian National Imams Council (Anic) and the Palestine Action Group (PAG) expressed concern that content-based bans could disproportionately affect Muslim Australians and risk arbitrary enforcement, arguing such phrases possess varied meanings depending on context.
• The NSW Jewish Board of Deputies (JBD) and the Executive Council of Australian Jewry (ECAJ) supported the proposed ban on "globalise the intifada," describing it as a significant step against hate and incitement, and associating the term with acts of violence.
• The NSW Council for Civil Liberties (NSWCCL) warned that banning slogans could undermine social cohesion, impact the implied freedom of political communication, and infringe upon international human rights treaties.

The Labor-majority committee on law and safety is leading the inquiry and is scheduled to submit its final report to the government by January 31.

Broader Context and Reactions

Civil society organizations, including the Australian Democracy Network (ADN) and the NSW Council for Civil Liberties (NSWCCL), expressed concerns regarding the "chilling effect" of the protest restrictions on the right to assembly, particularly for planned First Nations protests on January 26 (Australia Day). These groups highlighted Australia's obligations under the International Covenant on Civil and Political Rights, which requires any restrictions on protest to be "necessary and proportionate."

Health Minister Ryan Park confirmed the state government's support for the extension of restrictions, citing community safety, especially for the Jewish community. Michele Goldman, CEO of the NSW Jewish Board of Deputies, suggested a temporary postponement of protest activities as "a matter of common decency" during a time of grief.

The protest laws have also generated division within the Labor party, with some backbenchers reportedly warning they could exacerbate tensions. This is the latest in a series of challenges against protest-related legislation introduced by the Minns government; in October, the NSW Supreme Court declared unconstitutional a law that granted police power to move on protesters "in or near" a place of worship, following a challenge initiated by PAG.