NSW Supreme Court Rules Anti-Protest Place Of Worship Laws Invalid

The New South Wales Supreme Court has today ruled that amendments to laws forbidding protest near places of worship are invalid.

Justice Anna Mitchelmore ruled on Thursday morning that the amendments “impermissibly burdens the implied constitutional freedom of communication on government or political matters”.

Josh Lees, an organiser from the Palestine Action Group, challenged the laws introduced in February that saw a state-wide crackdown on hate speech under the premise of tackling antisemitism, giving the police the power to issue “move on” orders to protesters “in or near” a place of worship.

Lawyers for Lees argued that the amendments extended police powers beyond reasonable limitations, and that protests held in places including Hyde Park, Town Hall Square, and the CBD could be impacted.

Justice Mitchelmore said found the evidence demonstrated a “locational overlap between places where people commonly seek to protest and places of worship.”

Lees told the media outside the court that the court’s decision was a massive failure for Premier Chris Minns.

“Thankfully, at least in this matter, we’ve been able to uphold the right of the people of New South Wales to protest,” he said.

Greens MP and Justice Spokesperson Sue Higginson said the court had come down “decisively on the side of protest, democracy and freedom of political expression”.

“Labor Premier Chris Minns rammed these powers through the Parliament to give police more draconian powers, using false pretences and inflated statistics, and now they have been struck down. The Court has made clear that the Premier of NSW was wrong to punish people exercising their right to protest,”  she said.

Lawyers for Lees argued that the specific wording of the amendment- the phrase “in or near a place of worship”- was a “a geographically loose phrase that is readily capable of satisfaction”.

Meanwhile, the state’s legal team said the laws maintained their “obvious and legitimate purpose” of protecting religious communities, with the wording of “in or near” confined to those instances.

Mitchelmore’s judgement rejected this argument from the state.

“[The law] is directed at protest activity, removing a limitation on police giving directions in relation to an apparently genuine demonstration or protest,” she wrote.

“Protests and procession routes in areas of civic significance will likely place protestors in close physical proximity to places of worship, and the marginal burden imposed by [the law] goes further than the constitutionally valid baseline in a meaningful way.”

“Draconian” laws “dangerously limiting freedom of speech”, said critics

Premier Chris Minns said in a statement that while the ruling was disappointing, it was still an offence to obstruct worshippers.

“This does not mean there is free rein outside places of worship,” he said.

“Although the Supreme Court has determined that a police power to ‘move on’ persons engaging in obstructing, harassing and other conduct as part of a public assembly outside places of worship is invalid, the decision has no impact on the offence introduced recently in the NSW Government’s places of worship laws that make it a crime to impede, harass, intimidate or threaten a person accessing a place of worship.”

Minns was widely criticised for the legislation at the time, with human and civil rights groups calling the proposed laws “draconian“, and President of the NSW Council for Civil Liberties, Timothy Roberts saying the government was “dangerously limiting freedom of speech and threatening any political dissent with serious jail time.”

Findings from a review into section 93Z of the Crimes Act handed to the government last year also ruled against the laws, and warned  that provisions like those suggested by the Minns Government were imprecise and subjective.

The court heard evidence that the inciting incident for the places of worship bill, a protest held by anti-Zionist Jewish organisers outside the Great Synagogue where a member of the Israel Defence Force was speaking, was “not a religious event”.

“The Palestinian group has not organised a single protest targeting a place of worship,” said Lees.

“These laws were about targeting anyone who protested near a place of worship, even if it had nothing to do with that place of worship.”

The law was part of a state-wide crackdown on hate speech in reponse to a series of antisemitic attacks over a period of several months, including the discovery of an explosives-filled caravan that police ruled two weeks later was an organised crime “con job”.

An upper house inquiry into what Minns and senior cabinet members knew about the attacks prior to passing the legislation is yet to pass down its findings.