Lawyers for three protest groups have argued a Minns government law which effectively banned marches in Sydney’s CBD made its own objective of enhancing social cohesion “worse”.
On Thursday the NSW court of appeal heard the constitutional challenge against the anti-protest law, which was passed in the wake of the Bondi terror.
The laws restricts the use of the form 1 system – which can protect protest organisers from some offences – after a terrorist attack for up to three months.
Groups the Blak Caucus, the Palestine Action Group (PAG) and Jews Against the Occupation ’48 filed the challenge in early January, arguing the restrictions “impermissibly burden the implied constitutional freedom of communication on government and political matters”.
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David Hume SC, who acted on behalf of the groups, questioned whether specifically limiting protests for the purpose of enhancing social cohesion was legitimate under the constitution. The court also heard the state needed to provide evidence on why it was “rational to prevent all protests” to achieve that aim, and how it improved the system that was already in place.
“We think that it’s open to conclude that the new laws are worse,” he told the court.
“They undermine the objectives of protecting the community and enhancing social cohesion.”
The NSW police commissioner, Mal Lanyon, extended the so-called public assembly restriction declaration several times, limiting the ability for protesters to march without the risk of arrest in designated areas. The law did not impact static protests.
He cited ongoing community safety concerns, but no specific intelligence concerns, as reasons for the extensions.
The restriction was in place in parts of Sydney’s CBD during the rally against Israeli president Isaac Herzog’s visit in early February which turned violent and triggered a police watchdog investigation into police conduct. Lanyon ended the restriction last Tuesday after Herzog had left the country.
‘Fox guarding the henhouse’
Hume told the court that preventing the use of the form 1 system in designated areas was counterproductive because it did away with a system that provided a range of functions.
The system is an optional permit system that protest organisers can use to gain immunity from being charged for offences like obstructing traffic in an area negotiated with police.
Hume told the court these functions included providing a system for protesters and police to negotiate, giving the independent courts – rather than police – the power to knock back a permit, and giving protesters the “incentive” of sticking to what was negotiated with police.
“It ensured that protesters have an opportunity to let off steam, to put it colloquially, contributed to peaceful resolution of disputes, [and] enhanced social cohesion,” he said.
He pointed out that the catalyst for the form 1 system being put in place was the first Mardi Gras in 1978 in which police violently arrested protesters.
The court heard the new law had the effect of giving “police a relatively broad and uncontrollable power to require protesters to cease protesting and disperse”.
“There is a degree of the fox guarding the henhouse. The executive gets to decide whether there can be a protest against the executive,” he told the court.
“These laws, first, are fundamentally overly broad. They use a sledgehammer to seek to crack a nut. They burden, all protest, irrespective of the risk it poses, and irrespective of its expression of it. And secondly, they haven’t been shown to be necessary.
“The kinds of harms the state was concerned about are already addressed by the criminal law.”
State argues law was not made to discourage protests
Brendan Lim SC, who acted on behalf of the state government, argued that the law was a “confined rolling back” of the legal protections ordinarily offered by the form 1 system.
“The rational justification for that is because the community is experiencing the aftermath of a terrorist attack,” he told the court.
He argued that the purpose of the law was not to discourage protests. However, this was questioned by Justice Stephen Free, who sat on the appeal bench alongside chief justice Andrew Bell and Justice Julie Ward.
Free raised that the attorney general, Michael Daley, had said that the law was to “signal to the community that assembling in public spaces in the designated area is discouraged”.
Lim said the purpose of the law is “not to make people stay home”.
“The purpose is what the government is taking steps to do, protect the community, enhance social cohesion in the wake of a terrorist attack… [by] placing sensible limits on the authorisation of public assemblies,” the court heard.
Lim told the court there was a link between protecting the community and social cohesion because a “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”.
The court heard that Asio had raised concerns in recent published security advice about a “permissive climate for politically motivated violence” and that it had developed from the “normalisation of extremist views”, including views associated with “mass public protests”.
Labor divided over law
The law has come up numerous times in the state’s budget estimates this week. The NSW environment minister, Penny Sharpe – who attended the pro-Palestine march across the Sydney Harbour Bridge in August – agreed under questioning that no members of Minns’s cabinet had opposed the law.
However, there were repeated warnings from Labor backbenchers that such a law would create a flashpoint rather than calm tensions. Four backbenchers went to the anti-Herzog rally, including Sarah Kaine, Cameron Murphy, Stephen Lawrence, and Anthony D’Adam.
A number of Labor branches have passed motions calling for the law to be repealed. At least a dozen passed motions questioning police conduct at the protests.
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