The NSW Court of Appeal is about to hand down the most important protest rights judgment in Australian legal history

On 26 February 2026, the NSW Court of Appeal heard argument in Jarrett v State of New South Wales. Judgment remains reserved. The question before Bell CJ, Ward P, and Free JA: does a Public Assembly Restriction Declaration — a PARD — breach the implied constitutional freedom of political communication?

A PARD is a declaration by the Commissioner of Police, with the Police Minister’s concurrence, that suspends all rights to hold authorised protests across a designated area for up to 14 days, extendable to 90. No court can authorise an assembly within the declared area. Pre-existing authorisations are automatically revoked. The Commissioner needs only be satisfied that a terrorist attack has occurred or is threatened. The declaration issued on 24 December 2025 — within 10 days of the Bondi Beach attack — covered most of Greater Sydney, a population of 5.2 million people. It was extended four times before lapsing on 17 February 2026.

What the law does — and what the government says it does

The State’s core submission is that the PARD scheme is “modest” and “tightly confined” — that it merely restores ordinary police powers, and that “protest is not outlawed.” The plaintiffs dispute this characterisation fundamentally. Their submissions describe the actual effect:

“police officers and the executive government acquired broad control over all aspects of protests held within the PARD area, including what could be communicated and how; and whether they took place at all.”

On 18 January 2026, organisers had submitted a Form 1 notice seven days in advance for a march honouring David Dungay Jr. The Commissioner extended the PARD to cover the area before the march. On the day, police on horseback blocked the crowd from proceeding. The agreed facts also record that protests in early January were poorly attended due to “confusion and concern in the community that the protests might be illegal or that protesters might face arrest for attending.” Multiple major media outlets described the scheme as a protest “ban.”

The purpose problem

The constitutional test — drawn from McCloy v New South Wales (2015) — requires the Court to assess whether the law burdens the implied freedom, whether the purpose is compatible with the constitutionally prescribed system of representative government, and whether the law is proportionate: suitable, necessary, and adequately balanced.

The plaintiffs’ most significant submission goes to purpose. Attorney General Michael Daley told Parliament that “the making of a PARD will signal to the community that assembling in public spaces in a designated area is discouraged.” The plaintiffs argue this reveals an intended chilling effect — that the purpose is not to manage specific risks from specific assemblies but to discourage assembly generally. That, they submit, is “the very kind of purpose which the authorities have recognised as being illegitimate: curbing political disagreement and debate, limiting freedom of political communication and quelling political controversy.”

The State’s response is that the purpose — protecting community safety and social cohesion following a terrorist attack — is plainly legitimate. It relies on ASIO threat assessments documenting years of extremist rhetoric at protests and what the Director-General described as the “normalisation of violent protest.” The plaintiffs’ reply quotes the same Director-General:

“You cannot arrest your way to social cohesion. You cannot regulate your way to fewer grievances.”

They also note that the same PROBABLE terrorism threat level had operated for more than eight years up to November 2022 — throughout the entire period the pre-amendment regime was in place — without any equivalent restrictions on protest.

The necessity question

On proportionality, the sharpest dispute concerns necessity — whether a less restrictive means was available. The plaintiffs say yes, emphatically: the Form 1 process, operating for 47 years, is what their submissions call the “obvious and compelling alternative,” offering individualised, court-supervised justice. Under that regime, organisers notify police, police can negotiate conditions or seek a court prohibition, and a judge decides. The PARD scheme does not refine that process. It removes it entirely.

The State responds that the Form 1 process is too slow and court-dependent for a crisis environment. The plaintiffs’ reply is pointed:

“the statement that ‘a PARD operates in relation to all public assemblies, not a specific assembly seeking authorisation’ is a description of its vice, not its virtue.”

The pre-existing regime had already been found adequate — in Lees v State of New South Wales [2025] NSWSC 1209, Mitchelmore J had struck down a narrower move-on power as unconstitutional on exactly this ground. The State did not appeal that decision. The PARD scheme goes further than a provision already held to be invalid.

“Everything changes after a terrorist attack”

The hearing on 26 February produced exchanges that go to the heart of the case. Justice Free asked Brendan Lim SC for NSW to explain how laws operating as “a discouragement of public assemblies as they’re conventionally held” are “rationally connected to social cohesion.” Lim’s answer: “everything changes after a terrorist attack.”

That answer crystallises the State’s position — and its difficulty. The plaintiffs’ submissions open with a pointed observation:

“New South Wales asserts a constitutional power to restrict and deter all protest irrespective of the risk posed by any particular protest… History, and not only ancient history, shows that Governments often prefer that protest not occur or, if it must, that it occur in convenient places.”

Premier Chris Minns had said as much publicly. Following the Bondi attack, he announced that:

“public safety must come first…[this is] not a time for debate and protest in a democracy.”

The plaintiffs’ submissions treat that statement as precisely the kind of illegitimate purpose the Constitution prohibits.

The UN Special Rapporteur on Counter-Terrorism, Professor Ben Saul, described Australia as now having “some of the democratic world’s most draconian anti-protest laws.”

The PARD has since lapsed — the Commissioner chose not to renew it — and NSW argues the constitutional questions are now moot. The plaintiffs disagree: Ms Jarrett and Paul Silva were “arrested, battered, and assaulted” at a protest on 9 February while the PARD was in force; NSW Police “has not disavowed any ability” to issue a further PARD; and the threat level remains at “PROBABLE.” The real question, as the High Court said in Wragg v New South Wales (1953), is “whether what has been done can be repeated.” Here, it plainly can.

What the judgment will mean

If the Court reaches the merits, it will confront a scheme broader in geographic scope, longer in potential duration, and more absolute in effect than any previously tested against the implied freedom. A decision upholding it would confirm that emergency powers of this kind — covering millions of people, with no obligation to give reasons and no realistic prospect of judicial review within the 14-day window — are compatible with the Constitution. A decision striking it down would reinforce and extend the Lees precedent, and establish clearly that even a genuine security emergency does not licence a blanket suspension of political assembly.

The plaintiffs’ submissions close with a proposition the Court must either accept or reject: “in Australia, the Constitution stands in the way of attempts to quell political protest.” The judgment, when it comes, will tell us what that means in practice.