Summary
Joshua Lees brought a constitutional challenge to NSW legislation that expanded police powers to prohibit public assemblies and imposed significant penalties on protest organizers and participants. The laws were enacted in response to pro-Palestine demonstrations following the October 2023 Hamas attack on Israel. They gave police broad discretion to ban protests deemed likely to cause serious disruption or disorder.
The Supreme Court found the challenged provisions impermissibly burdened the implied freedom of political communication protected by the Australian Constitution. The laws pursued the legitimate aim of maintaining public order. But they were not reasonably appropriate and adapted to achieving that aim in a manner compatible with the maintenance of representative and responsible government. The provisions were declared invalid.
Key Facts
The challenged legislation allowed the Commissioner of Police to apply for court orders prohibiting public assemblies on grounds including that the assembly was likely to cause "serious disruption" to the community or "seriously affect public order." Penalties of up to two years imprisonment for organizers who proceeded with prohibited assemblies. Up to 12 months imprisonment for participants who attended despite prohibition orders.
The plaintiff argued these provisions granted police effectively unreviewable discretion to ban protests on political matters. The threshold of "serious disruption" was undefined and capable of capturing routine inconveniences associated with any significant public demonstration. The effect was to require protest organizers to seek permission from the very institutions they were often criticizing—a fundamental tension with the purpose of political protest.
The State of NSW defended the laws as necessary responses to protests that had blocked major roads and infrastructure, caused significant economic disruption, and created community tensions. The State argued the right to protest was not absolute and that the challenged provisions struck an appropriate balance between freedom of expression and the community's interest in public order and access to public spaces.
The Court heard extensive evidence about the history and importance of protest as a form of political communication in Australian democracy. Expert witnesses testified about the role of public demonstrations in major social and political reforms, from the anti-Vietnam War movement to the Aboriginal rights movement. Evidence showed that effective protest often requires some level of disruption to attract attention and communicate urgency.
The Court examined the operation of the laws in practice. Police had applied for prohibition orders in cases where the threatened disruption was minimal or speculative. The broad discretionary power, combined with severe penalties for non-compliance, had a chilling effect on legitimate political expression. Several planned protests were cancelled after police indicated they would seek prohibition orders.
Orders / Outcome
The Court declared the challenged provisions invalid on the ground that they impermissibly burdened the implied freedom of political communication. While the provisions pursued the legitimate objective of maintaining public order, they were not reasonably appropriate and adapted to achieving that objective in a manner compatible with the constitutional system of representative government.
The "serious disruption" threshold was insufficiently defined and granted police excessively broad discretion to prohibit assemblies on the basis of routine inconveniences. The severe penalties imposed by the legislation, particularly the criminal penalties for organizers and participants, were disproportionate and would deter people from exercising their constitutional right to engage in political communication through public assembly.
The Court emphasized that while the State has legitimate interests in managing the use of public spaces and preventing violence or significant disorder, these interests could be adequately protected through existing public order laws without creating a broad power to ban political assemblies. The implied freedom of political communication, while not absolute, requires that any burden on that freedom be justified by reference to the maintenance of representative and responsible government. That burden had not been met.
The decision had immediate effect, rendering the challenged provisions unenforceable. The Court ordered the State to pay the plaintiff's costs. Several protesters who had been charged under the now-invalid provisions had their charges dismissed. The NSW Government announced it would not appeal but would instead work with police and community groups to develop alternative approaches to managing large-scale protests.
Related Profiles
- Tukiterangi Lawrence — protest advocate (different context)