NSW Labor's anti-protest laws protecting places of worship have ‘chilling effect' on democracy, court told
Anti-protest legislation introduced by the New South Wales government in a bid to curb antisemitism is so 'vague' that protesters won't know if they've broken the law, a court has been told during a constitutional challenge.
A barrister for the Palestine Action Group made the argument before the NSW supreme court on Thursday when challenging the Minns Labor government's controversial laws giving police broad powers to restrict protests.
The laws make it an offence to hinder someone from entering or leaving a place of worship and restrict protests near places of worship.
The laws were part of a suite of reforms passed in February after a wave of antisemitic attacks over the summer, which included a caravan being found laden with explosives on the outskirts of Sydney.
Two weeks after the legislation was passed, the Australian federal police revealed the caravan and antisemitic attacks were a 'con job' by organised crime to divert police resources and influence prosecutions.
Josh Lees filed the challenge on behalf of the Palestine Action Group in the wake of the revelations.
The group argues the law is invalid because it 'impermissibly burdens the implied [commonwealth] constitutional freedom of communication on government or political matters'.
Craig Lenehan SC, acting for the plaintiff, told the court on Thursday that the 'vagueness' of the legislation's wording meant it had a 'chilling effect' – because neither protesters nor police officers could determine the reach of the powers.
'People who would wish to make these communications are placed in an insidious position where they are potentially exposed to prosecution in a highly indeterminate way,' Lenehan told the court.
The law does not apply to protests that have been approved by police via a form 1 application – which can take several days to process.
Where protests haven't been approved, the court was told the laws expanded police powers to issue a move-on order for 'obstruction' that is 'in or near' places of worship.
The court heard other laws governing protests recognised that, by their very nature and size, rallies could obstruct people and, therefore, move-on powers were restricted to when an obstruction caused a safety risk.
'Here … the Act refers to obstructing,' Felicity Graham, another lawyer for the plaintiff, told the court.
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The court was told that the police would also have discretion over what 'in or near' meant, given it was not defined in the legislation. That could expand police powers at a number of major protest sites in Sydney, including Town Hall and Hyde Park.
'There's a stark contrast between the word 'near' and the terms 'occurring at or outside',' said Graham. 'Near is a broad and elastic term.'
Graham said the defendant was arguing that police powers only extended to 'circumstances where a worshiper is so affected by obstruction, harassment, intimidation or fear'. But she told the court that this 'should be rejected as it doesn't emerge from the text, context or purpose of the legislation'.
Graham told the court that the 'catalyst' for the laws – a protest outside Sydney's Great Synagogue in December 2024 – 'was not a religious event'.
'[It] was a political event being held at the Synagogue, a Technion event … at which an Israel Defense Forces member was speaking,' she told the court.
Graham referred to comments made by one of NSW Labor's own MPs, Stephen Lawrence, during a debate over the bill in parliament, where he said the synagogue protest being the catalyst showed the 'clear intention of the bill' was not what the government claimed.
The hearing continues.
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