‘Unconstitutional’: NSW anti-protest law struck down by Supreme Court

The Minns government passed the legislation during an emergency sitting of Parliament on Christmas Eve, in the aftermath of the devastating terrorist attack in Bondi Beach, introducing sweeping restrictions designed to curb public assemblies across parts of Sydney for almost two months.

As a result, it prevented protesters from relying on the Form 1 system – a formal notice to police of a planned public assembly – in areas declared by police for up to three months after a terrorist attack, effectively leaving anyone who marched in those designated zones exposed to the risk of arrest.

However, activist groups, the Black Caucus and the Palestine Action Group, launched a constitutional challenge in January, saying that the laws had a “chilling effect” on speech and unlawfully infringed the implied freedom of political communication guaranteed under the Constitution.

The Supreme Court of NSW found that the legislation conferred sweeping powers on the NSW Police Commissioner, enabling restrictions on protests across large parts of the state for months following the Bondi Junction stabbings.

This is not the first time the Minns government has come under scrutiny over its anti-protest legislation, with the latest ruling marking the second occasion in just six months that a court has found one of its protest laws to be unconstitutional.

In response to the decision, the Human Rights Law Centre (HRLC) has called on the Minns government to drop all charges brought against protesters at Sydney Town Hall on 6 February, repeal NSW’s anti-protest laws, and strengthen legal protections for the right to protest.

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Sarah Schwartz, legal director at the HRLC, described the decision as a “warning shot” to the state government and police, urging them to uphold their responsibility to protect – rather than suppress – peaceful protest.

“This decision provides yet another warning shot to NSW Premier Chris Minns and NSW Police to uphold their responsibilities to support people to peacefully protest and express their views rather than constantly trying to quash dissent,” Schwartz stated.

“Protest is fundamental to our democracy. From First Nations land rights, to environmental rights, to women’s right to vote and marriage equality, so many of our rights have been won by protest.”

Schwartz has urged authorities to drop legal proceedings against those who took part in the February protest, saying participants faced “police harassment and violence” and calling for NSW laws to be brought into line with international human rights obligations.

“NSW Police should drop all charges against people who peacefully protested on 6 February who were subject to police harassment and violence,” Schwartz noted.

“The Minns government should protect and enshrine the right to protest in NSW laws, in line with Australia’s obligations under human rights law.”