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New South Wales Court of Appeal Rules Protest Restriction Laws Unconstitutional

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NSW Court of Appeal Rules Protest Restriction Laws Unconstitutional

The NSW Court of Appeal has ruled that state laws granting police expanded powers to restrict protests following a terrorist incident are unconstitutional.

The ruling follows a legal challenge initiated by several activist groups and concludes a period of legal and political debate over the balance between public safety and protest rights in the state.

The Ruling and the Challenged Laws

On Thursday, the NSW Court of Appeal delivered its judgment, finding that the Public Assembly Restriction Declaration (PARD) laws "impermissibly burdened" the implied constitutional freedom of political communication.

The laws were passed by the NSW parliament in an emergency sitting following a terrorist attack at Bondi Beach on December 24, which resulted in 15 fatalities. The legislation granted the NSW Police Commissioner the power to issue a blanket refusal to authorize public assemblies in designated areas of Greater Sydney for up to three months after a declared terrorist incident. The commissioner could extend the declaration in two-week increments.

The laws modified the existing 'Form 1' system, which typically provides legal protections to protest organizers from certain offenses like obstructing traffic. The PARD laws did not ban static protests but removed the ability for assemblies to be authorized under this system.

The Legal Challenge

The constitutional challenge was filed in the NSW Supreme Court by groups including the Blak Caucus, the Palestine Action Group, and Jews Against the Occupation ’48. The case was later referred to the Court of Appeal.

Arguments against the laws:

  • David Hume SC, representing the challengers, argued the laws were overly broad, burdened all protests irrespective of risk, and were not demonstrated as necessary. He contended they removed a system that facilitated negotiation between protesters and police and granted police "broad and potentially uncontrollable power."

Arguments in support of the laws:

  • Brendan Lim SC, for the state government, argued the laws constituted a "confined rolling back" of protections justified by the community's experience after a terrorist attack. He stated the purpose was to protect the community and enhance social cohesion by placing "sensible limits" on authorizations.

The court's ruling did not affect a separate Major Events Declaration instrument that was also announced during the period the PARD laws were active. The PARD laws themselves lapsed on February 17.

Reactions and Implications

Legal and Organizational Responses:

  • The Redfern Legal Centre stated it is reviewing cases to determine if civil damages can be sought from NSW Police for clients affected by the laws. Principal assistant Samantha Lee said the ruling creates an opportunity for people charged with offences during assemblies that "could have been lawful" to have charges withdrawn.
  • University of NSW law professor Luke McNamara said the ruling exposes the government to closer scrutiny of individual incidents but does not automatically make it vulnerable to civil action, which would be assessed case by case. He described the ruling as robust.
  • The NSW Council for Civil Liberties called the ruling a repudiation of "draconian" laws.
  • The Human Rights Law Centre called for NSW Police to drop all charges against people who peacefully protested on February 6.
  • The Australian Democracy Network stated a review is needed on how protests are policed and regulated in NSW.

Government and Political Response:

  • NSW Premier Chris Minns said the government is considering the court's decision but stands by the decision to introduce the legislation, believing it was "necessary and important for Sydney at the time."
  • Shadow Attorney-General Damien Tudehope said the ruling is a consequence of the government rushing complex legislation without thorough examination.

The NSW government can seek an appeal before the High Court of Australia.

Context: Application and Related Events

The PARD declaration was activated on December 24 and extended multiple times by Police Commissioner Mal Lanyon, who cited community safety concerns. The restrictions were in place during a rally against Israeli president Isaac Herzog’s visit to Sydney, which resulted in violence and a police watchdog investigation.

During the period the laws were active, several planned protests were impacted, including a First Nations rally concerning Indigenous deaths in custody. Organizer Paul Silva criticized the police decision, while Health Minister Ryan Park expressed government support for the restrictions, citing the vulnerability of the Jewish community.

The laws also caused reported division within the NSW Labor party, with several branches calling for repeal.

Related Inquiry into Protest Slogans

Concurrently, a NSW parliamentary inquiry has been examining measures to prohibit slogans perceived to incite hatred, such as "globalise the intifada." The inquiry was initiated after Premier Minns identified the phrase as "hateful rhetoric" following the Bondi attack.

Submissions to the inquiry included:

  • The Australian National Imams Council and the Palestine Action Group expressed concern that a ban would disproportionately affect Muslim and Arab communities and risk arbitrary enforcement.
  • The NSW Jewish Board of Deputies had previously supported a ban, describing the phrase as a significant step against hate.
  • The NSW Council for Civil Liberties warned that banning slogans could undermine social cohesion and freedom of political communication.

The inquiry, which did not hold public hearings, is scheduled to submit its final report by January 31.