The New South Wales supreme court has struck down a law that had given police expanded powers to prevent protests near places of worship.
Josh Lees, on behalf of the Palestine Action Group, had challenged the law on the basis that it was unconstitutional.
Justice Anna Mitchelmore ruled on Thursday that the police powers impermissibly burdened the freedom of political communication implied in Australia’s constitution.
The challenge came after the NSW government in February made changes aimed at curbing antisemitism. This included a law which gave police the power to move on protesters who were “in or near” a place of worship.
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It raised fears that the broad powers could see police shut down protests at major sites in Sydney, including Town Hall and Hyde Park, which are near places of worship. The move-on powers did not stipulate that the protest needed to be directed at the place of worship – it could be about anything.
During the hearing in June, lawyers for the Palestine Action Group argued the “vagueness” of the legislation’s wording created a “chilling effect” as neither protesters nor police officers could determine the reach of the powers.
The state of NSW had argued that the laws had an “obvious and legitimate purpose” of protecting religious communities trying to access a place of worship from physical obstruction, physical or verbal harassment, intimidation or incitement to fear.
Appearing for the state of NSW, Michael Sexton SC told the court the “in or near” wording was confined to those instances.
However, Mitchelmore said in her judgment that she did not accept that submission by the state.
“[The law] is directed at protest activity, removing a limitation on police giving directions in relation to an apparently genuine demonstration or protest,” she wrote.
“Protests and procession routes in areas of civic significance will likely place protestors in close physical proximity to places of worship, and the marginal burden imposed by [the law] goes further than the constitutionally valid baseline in a meaningful way.”
Catalyst for the bill
The court heard the catalyst for the places of worship bill was a protest outside the Great Synagogue where a member of the Israel Defense Forces was speaking.
“[It] was not a religious event,” PAG’s barrister, Felicity Graham, had told the court.
Lees told reporters after the judgment was delivered: “The Palestinian group has not organised a single protest targeting a place of worship.
“These laws were about targeting anyone who protested near a place of worship, even if it had nothing to do with that place of worship.”
After the judgment was handed down, NSW Greens MP Sue Higginson said the premier, Chris Minns, should have heeded the calls from members of his own party.
“When governments create moral panics, they make grave mistakes and they do go too far,” she said.
During a February debate over the bill, Labor MP Stephen Lawrence told parliament that the synagogue protest being the catalyst showed the “clear intention of the bill” was not what the government claimed.
Guardian Australia understands that the law caused friction during an internal Labor meeting after it was introduced. During that meeting, Labor MP Anthony D’Adam moved a motion to redraft the bill so that the obstruction was limited to instances where a protest was directed at a place of worship.
Both Lawrence and another Labor MP, Cameron Murphy, had warned that without this limitation, the law could be found unconstitutional.
Minns said in March that the government believed the laws were “constitutionally sound”.
D’Adam told parliament in February that the synagogue event “was put on by the Israel Institute of Technology and celebrated 100 years of that organisation”.
The Labor MP’s comments weren’t referred to in the supreme court, but D’Adam said at the time: “It was platforming a recently returned Israel Defense Forces member who was going to share their experiences of being on duty, presumably involved in the conflict in Gaza.”
On Thursday, after the judgment, Minns said the government would take time to consider the ruling.
“These laws were designed to strike the right balance between community protection and the freedom of political expression,” he said.
The premier noted the decision had no impact on the section of the law making it a crime to impede, harass, intimidate or threaten a person accessing a place of worship without a reasonable excuse. That offence carried a maximum of two years in prison.
Police were given associated move-on powers, which is the section PAG challenged.
The laws were part of changes passed in February after a wave of antisemitic attacks over the summer, which included a caravan being found laden with explosives on the outskirts of Sydney.
Two weeks after the legislation was passed, the Australian federal police revealed their belief that the caravan and antisemitic attacks were a “con job” by organised crime to divert police resources and influence prosecutions.
The revelation triggered an upper house inquiry into what Minns and his senior cabinet ministers knew about the attacks before passing the legislation. The inquiry, which was supported by the Coalition, the Greens and members of the crossbench, is yet to hand down its findings.
Last week, it was revealed that NSW police had wrongly categorised a “significant” number of incidents as antisemitic, including anti-Palestinian graffiti and verbal abuse directed at pro-Palestine protesters.
In March, as Minns came under fire for the legal changes, he cited an incorrect figure and referred to the incidents as attacks, telling the ABC: “There have been 700 instances of antisemitic attacks over the summer”.
