Updated ,first published
The Minns government took a “sledgehammer” to protests after the Bondi terror attack and laws rushed through parliament to bolster police powers should be declared invalid, the state’s top court has heard.
A trio of activist organisations, including the Palestine Action Group, asked the NSW Court of Appeal on Thursday to strike down laws giving the police commissioner the power to make a declaration restricting all protests in a geographical area for a specific time after a suspected terrorist act.
The restrictions covering the Sydney CBD and eastern suburbs were in place during Israeli President Isaac Herzog’s visit to Australia.
David Hume, SC, acting for the protest groups, told the court the laws were “fundamentally over-broad” and “they use a sledgehammer to seek to crack a nut”.
He argued the laws fell foul of the implied freedom of political communication in the Commonwealth Constitution, and all protests were restricted irrespective of the risk they posed.
Under the new laws, passed 10 days after the Bondi massacre on December 24, a public assembly restriction declaration (PARD) may be made by the police commissioner for up to 14 days, and may be extended for up to 90 days.
The concurrence of the police minister is required. The power to declare restrictions on protests may only be made in a terrorism-related context, but protests unrelated to the alleged terrorist act are captured.
Chief Justice Andrew Bell, Court of Appeal President Julie Ward and Justice Stephen Free presided over the hearing.
Free said it appeared the legislation did not give the police commissioner the “capacity to differentiate between types of assembly”.
“The commissioner has no way of saying, as I read it, ‘protests against planning laws in this part of Sydney can continue … [and] protests against deaths in custody can continue but protests relating to terrorist acts [cannot]’,” Free said.
Hume agreed: “The commissioner may be worried about protests in relation to the terrorist incident … but protests in relation to entirely unrelated topics that generate no risk are caught.”
Before making a declaration, the police commissioner must be satisfied the holding of protests in the area would be likely to cause “a reasonable person to fear … harassment, intimidation or violence” or for their safety, or to cause “a risk to community safety”.
Free suggested the risk to community safety might be read as embracing the concept of social cohesion, and the commissioner might form the view that “all assemblies should stop for a period of time because … they are apt to cause disharmony”.
The new laws operate to displace an existing legal mechanism for authorising or prohibiting protests on a case-by-case basis.
Under the existing laws, a protest is considered an “authorised public assembly” if organisers serve a notice on NSW Police at least seven days before the protest and it is not prohibited by a court.
When a protest is authorised, participants have a relatively narrow immunity from criminal liability for certain acts related to the protest, such as blocking traffic. This is not a licence to engage in criminal activity.
The commissioner’s declaration meant the protesters did not have this immunity.
Hume said the new laws “cut the independent judiciary out of the process” when the existing laws worked.
Public speech had an added significance in a world where most speech occurred online, and a “convenient protest out of sight is an ineffective protest”, Hume said.
A trio of barristers acting for the state of NSW, headed by Brendan Lim, SC, said in written submissions that the laws were a “modest extension of police powers”.
“That modest extension is amply justified by the apprehended effects of mass public assemblies on community safety and social cohesion in the aftermath of the Bondi Beach antisemitic terrorist act,” the submissions said.
Ward put to Lim that it appeared a declaration had “the result of precluding … a vigil or memorial function, for example” because it did not specify the kind of public assemblies being restricted.
Lim said they would be restricted in the sense of being “exposed to the exercise of police powers to prevent obstruction … and that would apply equally to vigils as it would to protests”.
“I suppose a very large vigil might obstruct traffic, but vigils are not generally setting out to obstruct persons or engage in harassment,” Lim said.
The most recent PARD lapsed on February 17, after Herzog’s visit. The state of NSW has argued the protest groups lost their legal ability to bring the challenge at that time.
The court will deliver its decision at a later date.
Earlier this month, the NSW Supreme Court rejected an eleventh-hour legal challenge by protesters to separate powers granted to police for the Herzog visit.
The NSW government declared the visit a major event under laws typically used to manage crowds at large sporting events, triggering wide-ranging police powers. This included the ability to shut down parts of a “major events area” in the Sydney CBD and eastern suburbs.
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