NSW Anti-Protest Law Faces Constitutional Challenge

Lawyers representing three protest groups—Blak Caucus, Palestine Action Group (PAG), and Jews Against the Occupation ’48—are contesting a New South Wales (NSW) law that effectively bans marches in Sydney's Central Business District (CBD). This legal challenge, heard by the NSW Court of Appeal, argues that the law, enacted following the Bondi terror attack, infringes upon the implied constitutional freedom of communication regarding government and political matters. David Hume SC, representing the groups, contended that the law's objective of enhancing social cohesion is counterproductive, asserting that it "undermine[s] the objectives of protecting the community and enhancing social cohesion."

The Guardian

The law restricts the use of the form 1 system, which previously allowed protest organizers to negotiate with police for immunity from certain offenses, such as obstructing traffic. Hume emphasized that this system facilitated peaceful resolutions and provided a framework for dialogue between protesters and law enforcement. He criticized the new law for granting police excessive power to disperse protests without adequate justification, likening it to "the fox guarding the henhouse."

The Guardian

Brendan Lim SC, representing the state government, defended the law as a necessary response to community safety concerns following a terrorist attack. He argued that the law was not intended to discourage protests but to implement "sensible limits" on public assemblies to protect the community. Lim cited the need for such measures in light of security advice from the Australian Security Intelligence Organisation (ASIO), which indicated a rising risk of politically motivated violence linked to public protests.

The Guardian

The law has sparked internal dissent within the NSW Labor Party. While the environment minister, Penny Sharpe, acknowledged that no cabinet members opposed the law, several Labor backbenchers expressed concerns that it could exacerbate tensions rather than alleviate them. Four backbenchers participated in the anti-Herzog rally, and numerous Labor branches have called for the law's repeal, reflecting a growing unease about its implications for civil liberties.

The Guardian

There is a notable discrepancy regarding the law's impact on public safety and social cohesion. While the government argues that the law is essential for community protection, critics assert that it may worsen the situation by stifling legitimate protests. Additionally, the lack of specific intelligence concerns cited by police raises questions about the necessity of such broad restrictions.

The Guardian

• “We think that it’s open to conclude that the new laws are worse,” — David Hume SC

The Guardian

• “They use a sledgehammer to seek to crack a nut.” — David Hume SC

The Guardian

• “The purpose is what the government is taking steps to do, protect the community, enhance social cohesion in the wake of a terrorist attack…” — Brendan Lim SC

The Guardian

• “public assembly might express support for or denounce a particular community or group, which can further inflame tensions and give rise to risks or safety” — Brendan Lim SC

The Guardian

The outcome of this constitutional challenge could have significant implications for the balance between public safety and the right to protest in New South Wales.

The Guardian