A protest outside a Sydney synagogue – which was the “catalyst” for the New South Wales government introducing anti-protest laws designed to curb antisemitism – was targeting an event where a member of the Israel Defense Forces was speaking, a court has been told during a constitutional challenge.
The Palestine Action Group is challenging in the NSW supreme court the Minns Labor government’s controversial laws giving police broad powers to restrict protests.
The group’s barrister on Thursday said the protest outside the Great Synagogue in early December 2024 “was not a religious event”. It “was a political event being held at the synagogue, a Technion event … at which an Israel Defense Forces member was speaking,” Felicity Graham told the court.
The challenge is against expanded police powers in laws that make it an offence to hinder someone from entering or leaving a place of worship, or cause obstruction, harassment, intimidation or fear near places of worship.
The laws were part of a suite of reforms 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.
Josh Lees filed the challenge on behalf of the Palestine Action Group after the revelations.
Separately, a parliamentary inquiry – supported by the Coalition, the Greens and members of the crossbench – was launched into what the premier, Chris Minns, and his senior cabinet ministers knew about the attacks before passing the legislation.
On Thursday in court, Graham referred to comments made by one of NSW Labor’s own MPs, Stephen Lawrence, during a February debate over the places of worship bill. Lawrence told parliament that the synagogue protest being the catalyst showed the “clear intention of the bill” was not what the government claimed.
In the same debate, Labor MP Anthony D’Adam said the event “was put on by the Israel Institute of Technology and celebrated 100 years of that organisation”.
D’Adam’s comments weren’t referred to in the supreme court but the MP told parliament 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.”
The prime minister, Anthony Albanese, said in December that “more recently, what we’ve seen is people [outside] the Great Synagogue … why would you do that? I mean, what is in people’s heads?”
“I know premier Minns has made comments about this and I certainly support his view.”
‘“Near” is a broad and elastic term’
The Palestine Action Group is arguing the places of worship law is constitutionally invalid because it “impermissibly burdens the implied [commonwealth] constitutional freedom of communication on government or political matters”.
Craig Lenehan SC, also acting for the plaintiff, told the court on Thursday that the “vagueness” of the legislation’s wording meant it had a “chilling effect” – because neither protesters nor police officers could determine the reach of the powers.
“People who would wish to make these communications are placed in an insidious position where they are potentially exposed to prosecution in a highly indeterminate way,” Lenehan told the court.
The law does not apply to protests that have been approved by police via a form 1 application – which can take several days to process.
The court was told that the police would also have discretion over what “in or near” meant, given it was not defined in the legislation. That could expand police powers at a number of major protest sites in Sydney, including Town Hall and Hyde Park.
“There’s a stark contrast between the word ‘near’ and the terms ‘occurring at or outside’,” Graham said. “‘Near’ is a broad and elastic term.”
Appearing for the state of NSW, Michael Sexton SC, 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.
Sexton argued the “in or near” wording was confined to those instances and that such move on powers were “rationally connected to achieving the purpose of ensuring that people are free to practise their religion without being impeded or harassed”
Graham told the court it should reject the argument police powers were confined to instances where there was behaviour that constituted intimidation or harassment of worshippers because “it doesn’t emerge from the text, context or purpose of the legislation”.
The evidence was completed on Thursday and Justice Anna Mitchelmore reserved her decision.
‘Definition of a fishing expedition’
On Friday, the parliamentary inquiry into the Dural caravan incident will be reopened after five staffers from the Minns government were summoned to appear after their refusal to do so.
The staffers include three people from Minn’s office and two people from the office of the NSW police minister, Yasmin Catley.
However, Minns told reporters on Thursday that his staffers would not appear – despite the summons.
“One of the staff that’s been asked to give evidence was on his honeymoon during this alleged period,” he told reporters.
“My staff have appeared at upper house inquiries where we believe it’s appropriate and relevant and they’ve got information to supply to the committee.”
Minns said that the inquiry was the “definition of a fishing expedition” and that it was based on a “conspiracy theory” that parliament was misled.
“I think that there’s a lot of games being played by the Legislative Council,” he said.
“I honestly think that it may be some kind of an attempt to say to young people, well, maybe you shouldn’t think about a career in the NSW government, because you could be liable to one of these inquiries.”
