The Minns government's attempt to boost social cohesion might have backfired spectacularly! A new law in NSW, designed to restrict protests in Sydney's CBD, is now facing a constitutional challenge, with lawyers arguing it's actually making things worse. This all kicked off after the Bondi terror incident, leading to restrictions on a system that usually helps protect protest organizers.
But here's where it gets controversial... Lawyers for three protest groups – the Blak Caucus, the Palestine Action Group (PAG), and Jews Against the Occupation ’48 – are claiming these restrictions impermissibly burden the implied constitutional freedom of communication on government and political matters. Essentially, they're saying the government is overstepping its bounds by limiting free speech in this way.
David Hume SC, representing the groups, raised a crucial point: is it even constitutional to limit protests with the goal of enhancing social cohesion? He argued that the state needs to prove why banning all protests is the rational way to achieve this and how it actually improves the existing system. "We think that it’s open to conclude that the new laws are worse," he stated, adding that they "undermine the objectives of protecting the community and enhancing social cohesion."
The NSW Police Commissioner, Mal Lanyon, kept extending these restrictions, meaning protesters could face arrest for marching in certain areas. Interestingly, these restrictions didn't apply to static protests. While community safety concerns were cited, there was no specific intelligence to back up the extensions. These restrictions were in place during a rally against Israeli president Isaac Herzog's visit, which unfortunately turned violent and led to a police watchdog investigation. The restrictions were only lifted after Herzog left the country.
And this is the part most people miss... Hume explained that blocking the use of the 'form 1' system is counterproductive. This system is an optional permit that allows organizers to negotiate with police and gain immunity from certain charges, like obstructing traffic. It's designed to facilitate negotiation, give courts the power to approve or deny permits (not just the police), and incentivize protesters to stick to agreed-upon plans. "It ensured that protesters have an opportunity to let off steam... contributed to peaceful resolution of disputes, [and] enhanced social cohesion," Hume explained. He even pointed out that the 'form 1' system itself was born from the first Mardi Gras in 1978, a time when police violently arrested protesters.
The new law, he argued, gives the police "a relatively broad and uncontrollable power to require protesters to cease protesting and disperse." This, he dramatically put it, is a case of the "fox guarding the henhouse." He questioned, "The executive gets to decide whether there can be a protest against the executive." Hume concluded that the laws are fundamentally overly broad, using a "sledgehammer to seek to crack a nut," burdening all protests regardless of their risk or expression. He also stressed that the "kinds of harms the state was concerned about are already addressed by the criminal law."
On the other side, Brendan Lim SC, representing the state government, argued that the law was a "confined rolling back" of legal protections, justified by the aftermath of a terrorist attack. He insisted the law's purpose wasn't to discourage protests, but this was challenged by Justice Stephen Free, who noted the Attorney-General himself had stated the law was to "signal to the community that assembling in public spaces in the designated area is discouraged." Lim countered that the purpose was not to make people "stay home," but to "protect the community, enhance social cohesion in the wake of a terrorist attack… [by] placing sensible limits on the authorisation of public assemblies."
The court also heard that ASIO had raised concerns about a "permissive climate for politically motivated violence" stemming from the "normalization of extremist views," including those associated with "mass public protests."
Labor divided over law: This law has caused quite a stir within the Labor party. While Environment Minister Penny Sharpe confirmed no cabinet members opposed the law, several backbenchers warned it would create flashpoints rather than calm tensions. Four backbenchers even attended the anti-Herzog rally. Several Labor branches have passed motions calling for the law's repeal and questioning police conduct at protests.
What do you think? Is it ever right for a government to restrict fundamental freedoms like protest, even in the name of safety? Or does this law genuinely stifle dissent and create a "fox guarding the henhouse" scenario? Share your thoughts in the comments below!
