A woman accused of carrying the Hezbollah flag at a pro-Palestine rally will be the first person to challenge the validity of federal anti-terror laws.
Sarah Mouhanna has pleaded not guilty to causing a public display of a prohibited terrorist organisation symbol following a protest in the Sydney city centre on September 29, 2024.
The 20-year-old is the first person to contest national laws introduced in 2023 to stop the display of prohibited terrorist organisation symbols in public places, a court heard.
She was prepared to fight the charge in Sydney's Downing Centre Local Court on Tuesday, but left with a much bigger fight on her hands after the magistrate refused to preside over the landmark case.
Mouhanna's barrister said the law his client was accused of breaking was unconstitutional because it infringed on the implied freedom of political speech.
"Clearly the matter is of federal significance," Thomas Woods said.
There was also a dispute over whether the 20-year-old knew she was carrying the flag of a proscribed terrorist organisation, the court heard.
Magistrate Christine Haskett said the constitutional challenge meant she could not deal with the matter, which should instead be elevated to the nation's highest court.
"I'm just concerned you've put the cart before the horse," she said.
"The High Court is the ultimate authority when dealing with the constitution. I don't have any power to deal with it."
But the commonwealth prosecutor argued the magistrate had both the power and the jurisdiction to deal with the constitutional issue, even if her decision could later be overruled by the High Court.
He said there was no guarantee the nation's highest court would hear the case and delays would result in "further fragmentation" of a matter that had been ready to proceed to a hearing.
Both state and federal attorneys-general had been made aware of the constitutional challenge and did not move to oppose it in the local court.
Ms Haskett noted the case was significant and Mouhanna was unlikely to be the only person charged with the offence given weekly protests occurring around the nation.
"It is a major constitutional issue," she said.
The magistrate elected not to hear the case and adjourned it until November 18 after Mouhanna flagged an intention to escalate the fight to the High Court.
"We're now considering our options in a more superior court," her solicitor Hisham Karnib said after the hearing.
Mouhanna was charged after a large pro-Palestine protest that followed the expansion of Israel's offensive in Gaza into the Hezbollah stronghold of southern Lebanon.
