New South Wales (NSW) is currently navigating a constitutional challenge against recently enacted protest restriction laws, which allow police to issue blanket bans on public assemblies following terrorist incidents. Simultaneously, a parliamentary inquiry is examining proposed bans on slogans such as "globalise the intifada," a phrase at the center of a recent protest-related detention. These developments unfold as police maintain an extended declaration restricting protest authorizations across parts of Sydney, impacting upcoming planned rallies.
New Protest Laws and Declarations
In late December, the NSW government introduced new legislation in response to a terrorist attack at Bondi Beach on December 14. These laws grant the NSW Police Commissioner discretionary authority to refuse authorization for public assemblies for up to three months following a terrorist incident, with the possibility of two-week extensions. While the laws do not prohibit static assemblies, they prevent their official authorization under NSW's Form 1 system, which provides legal protection from prosecution for certain offenses like obstructing pedestrians or traffic. Premier Chris Minns has stated confidence in the laws' ability to withstand a constitutional challenge, characterizing civil liberties concerns as "overblown."
On December 24, NSW Police Commissioner Mal Lanyon issued a 14-day Public Assembly Restriction Declaration (PARD) for Sydney's Central Business District (CBD), south-west, and north-west policing areas. This declaration was subsequently extended on January 6 until January 20, with Commissioner Lanyon citing community safety concerns, though noting no new intelligence prompted the decision.
Both the Premier and the Police Commissioner have maintained that the laws do not restrict "peaceful" and static assemblies. However, challenging groups argue that changes, which also grant police move-on powers at unauthorized protests, effectively prohibit all protests.
Constitutional Challenge to Protest Restrictions
A constitutional challenge against these new protest laws was filed in the NSW Supreme Court by several activist groups, including Blak Caucus, Palestine Action Group (PAG), and Jews Against the Occupation ‘48. Their court summons contends the laws are invalid, asserting they "impermissibly burden the implied constitutional freedom of communication on government and political matters."
A preliminary hearing for the challenge was scheduled for Thursday, with Justice Julia Lonergan indicating the complexity of the matter. A referral to the NSW Court of Appeal is under consideration, with Chief Justice Andrew Bell scheduled to hear on January 29 whether the case will be moved to the higher court.
The challenging groups have expressed concern that the declaration, which can be extended for a maximum of 90 days, may impact planned Invasion Day rallies on January 26. Commissioner Lanyon described such considerations as "very premature." Constitutional law experts have expressed uncertainty regarding the potential outcome of a challenge against these powers.
Civil liberties organizations have voiced concerns regarding the protest restrictions:
- Timothy Roberts, President of the NSW Council for Civil Liberties (NSWCCL), stated that the laws were generating an "extraordinary chilling effect" due to police discretion.
- The Australian Democracy Network (ADN) and other civil society groups urged the Police Commissioner not to extend the ban further, citing Australia's obligations under the International Covenant on Civil and Political Rights. They argued that restrictions on protest must be "necessary and proportionate."
- Josh Lees of the Palestine Action Group called the laws "undemocratic" and giving police "draconian powers."
"Globalise the Intifada" Slogan and Proposed Bans
The phrase "globalise the intifada" has become a focal point of debate and potential legislative action. "Intifada" is an Arabic term meaning 'uprising,' used by Palestinians to describe uprisings against Israel. Interpretations of the phrase differ, with some Palestinians and their supporters viewing it as resistance against oppression, while many Jewish groups and leaders view it as a call to violence. David Slucki, director of the Australian Centre for Jewish Civilisation, described the phrase as "offensive" and "threatening."
In a recent incident, a 53-year-old woman was detained in Sydney's CBD during a protest against US military intervention in Venezuela for wearing a jacket displaying the phrase. She was later released without charges. Two men were also arrested at the protest for alleged breaches of the peace and released without charge. Approximately 300 individuals attended the protest, despite a prohibition on public demonstrations.
There is currently no federal criminal offense in Australia explicitly banning "globalise the intifada." However, Premier Minns has publicly stated his intention to ban the phrase, describing it as "hateful, violent rhetoric." In December, he advised against using the slogan, claiming advice indicated it was "already in breach of hate speech laws in NSW," and new legislation would remove any doubt.
The NSW government has initiated a parliamentary inquiry to investigate measures to prohibit slogans perceived to incite hatred, specifically focusing on phrases such as “globalise the intifada.” The inquiry, led by a Labor-majority committee, is scheduled to submit its final report by January 31.
Submissions to the inquiry have presented diverse perspectives:
- The Australian National Imams Council (Anic) argued that banning such phrases would likely disproportionately affect Muslim Australians and that terms like "globalise the intifada" do not possess a single, fixed meaning.
- The Palestine Action Group (PAG) echoed these concerns, rejecting the notion that the chant is threatening.
- The NSW Jewish Board of Deputies (JBD) previously supported banning "globalise the intifada" as a significant step against hate and incitement. The Executive Council of Australian Jewry (ECAJ) indicated that hate speech legislation should address evolving symbolism used by extremist organizations.
- The NSWCCL warned that banning slogans could undermine social cohesion, implied freedom of political communication, and international human rights treaties, suggesting education and human rights as more effective tools.
Upcoming Protests and Advocacy
Several upcoming events are affected by the current protest restrictions:
- January 18: Paul Silva, organizer of a First Nations rally addressing Indigenous deaths in custody, plans to proceed with a march through Sydney's streets despite the extended restrictions. He stated his belief that the laws are "inhumane" and that police should not restrict a protest critical of the force itself. Commissioner Lanyon indicated police would collaborate with organizers if they complied with the new regulations.
- January 26: Planned Invasion Day rallies may be impacted by the ongoing declaration.
Advocates, including Anastasia Radievska of ADN, have indicated that the current declaration sets a low threshold and lacks safeguards for police decisions regarding protest restrictions.
Prior Challenges
This is not the first legal challenge against protest-related legislation introduced by the Minns government. In October, the NSW Supreme Court declared a law unconstitutional that granted police power to move on protesters "in or near" a place of worship. This ruling followed a challenge initiated by the Palestine Action Group.