Court strikes down Minns government’s controversial protest restrictions

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.

Upper house Greens MP Sue Higginson, a lawyer and the party’s justice spokesperson, said: “Premier Chris Minns has once again been pulled into line by the courts for inflicting unconstitutional laws on the people of NSW.”

Any charges “resulting from police activity at Town Hall need to be withdrawn”, Higginson said, and “civil liability in the tens of millions is inevitable”.

“People were harmed, their right to march to Parliament was unlawfully obstructed, and no doubt police were harmed too,” she said.

Higginson said the premier “needs to take responsibility for this”.

Before the judgment was released, 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 laws, passed 10 days after the Bondi massacre on December 24, the police commissioner was empowered to make a public assembly restriction declaration (PARD) for up to 14 days. It could be extended for up to 90 days.

The concurrence of the police minister was required. The power to declare restrictions on protests could only be made in a terrorism-related context, but protests unrelated to the alleged terrorist act were captured.

Before making a declaration, the police commissioner had to 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 displaced 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.

The state of NSW had argued in written submissions to the court that the laws were a “modest extension of police powers”.

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