History tells us that anti-protest laws rushed through parliament often have an unhappy ending in the courts. In 2022 laws were whipped through the New South Wales parliament in response to a series of climate protests to prevent protesters disrupting infrastructure and major facilities. They were challenged by the “knitting nanas”, who succeeded in having part of the law struck down for impermissibly burdening the implied freedom of political communication.
Then we had the Dural caravan episode, which led to more laws being urgently passed – this time to restrict protests outside places of worship. Again, part of the legislation was struck down. It had allowed police to issue “move-on” orders to people who were protesting near a place of worship, even though they were not obstructing, harassing or intimidating any people who were entering or leaving the place of worship. But the NSW supreme court held that this went beyond what was necessary to achieve its legitimate purpose of protecting worshippers. There were more narrowly focused equally effective alternatives which could have been adopted and would have had less of a burden on political communication.
In what feels like Groundhog Day, once again the NSW parliament is rushing through anti-protest legislation with little to no scrutiny. This time it allows the police commissioner to issue a “public assembly restriction declaration” in relation to a particular area, after a suspected terrorist incident has been declared. It doesn’t ban protests and marches but it does prevent them from being “authorised” by police or the courts under the existing regime. If a protest in a public place is not formally authorised, it means the protesters can be prosecuted if they obstruct people or traffic in a public place. It also means the police can issue move-on orders and it is an offence not to comply.
Activist groups have already announced that they will challenge this law. Like the challenge to the law about protests near places of worship, the validity of this new anti-protest law is likely to turn on whether it is “reasonably appropriate and adapted” to serve a legitimate end, including whether it appropriately balances the benefits achieved by the law against the detriment caused by the restriction on free speech.
There are aspects of this law which support both sides of the argument. On the one hand, a “public assembly restriction declaration” does not impose an outright ban on protests. It applies only in a declared area and for up to 14 days, although it can be extended up to 90. The police commissioner or deputy police commissioner may only make the declaration within 14 days of a declaration of a suspected terrorist incident, and only if satisfied that holding public assemblies in the declared area would be likely to cause a risk to community safety or cause a reasonable person to fear harassment, intimidation or violence, or fear for their safety. A court would take all these limitations into account when considering whether the law is appropriate and adapted to achieving its aim.
On the other hand, the groups challenging the law would most likely argue that the declared area can be very large, potentially the entire state, and does not appear to be limited to the area where the terrorist attack occurred. A public assembly restriction declaration will also apply to every public assembly that takes place within that area, even when a particular assembly, be it a Mardi Gras parade, a climate march, or a protest about the closure of a local school, is not something that would be likely to cause fear or risk public safety. In short, they would argue that the law is over-inclusive and not sufficiently targeted at its legitimate aim. They would contend that it disproportionately affects freedom of political communication.
In contrast, the NSW premier, Chris Minns, has been more cautious in relation to his proposal to ban certain phrases chanted during protests. He said: “I’ve moved a series of laws in NSW that have been knocked over in the high court because they were deemed to breach freedom-of-speech provisions … So I need to make sure that what we do works.” He is therefore holding a parliamentary inquiry to receive evidence on the matter in the hope of achieving constitutionally “airtight” laws.
While no one can be certain about the precise boundaries of constitutional validity and no guarantee can be given about constitutionally airtight laws, the more scrutiny and consideration given to such bills before they are enacted, the greater the chance that they will be better calibrated to withstand a constitutional challenge.
• Anne Twomey is a professor emerita in constitutional law at the University of Sydney
