Updated ,first published
Criminal charges laid against demonstrators who clashed with police during a visit by the Israeli president are in doubt after NSW’s top court struck down laws rushed through parliament to restrict protests following the Bondi terrorist attack.
The NSW Court of Appeal decision on Thursday prompted immediate calls for police to drop the charges laid against protesters at the Town Hall demonstration. However, the ruling does not automatically invalidate those charges.
Major event laws, which were also invoked for Israeli President Isaac Herzog’s visit to Australia, gave police an additional source of powers. The Supreme Court rejected a separate challenge to those restrictions in February before the protest.
Thousands of demonstrators clashed with hundreds of police on February 9 in a bloody and chaotic confrontation in the Sydney CBD, with dozens of charges laid. Restrictions covering the Sydney CBD and eastern suburbs were in place during Herzog’s visit, and bolstered the existing powers of police.
A trio of activist organisations, including the Palestine Action Group, asked the NSW Court of Appeal to strike down new laws which gave the police commissioner the power to make a declaration restricting all protests in a geographical area for a specific time after a suspected terrorist act.
The challenge was filed before the protest, but the hearing took place in its aftermath.
In its decision on Thursday, the court – Chief Justice Andrew Bell, Court of Appeal President Julie Ward and Justice Stephen Free – declared the laws were invalid because they “impermissibly burdened” the implied freedom of political communication.
The court noted the “broad and un-discriminating nature” of the restrictions, which would capture any protest in the geographical area.
“Perhaps most paradoxically of all, it would apply to a proposed public assembly in support of social cohesion,” it said.
“There is no option under the impugned provisions other than to simply sweep up all public assemblies and subject them to the same restriction.”
The court said that “quelling one particular form of political communication in the interests of protecting another part of the community from a sense of unease or threat (not associated with any proximate physical threat) is not a constitutionally legitimate purpose”.
NSW Police was reviewing the court’s decision, a spokesperson said. Police charged 25 people over the February 9 protest.
Premier Chris Minns said he was disappointed by the decision but stood by his government’s decision to introduce the laws.
“This was in the aftermath of the worst terrorist attack our country has seen, in which 15 innocent lives were lost,” he said.
“We believe it was necessary and important for Sydney at the time.”
The Palestine Action Group called for all charges against protesters connected to the protest at Town Hall to be withdrawn.
“These were laws … which deemed that the police could be given, effectively, the powers to ban all street demonstrations and many other protests about whatever cause,” PAG spokesman Josh Lees said. “This was like using a sledgehammer to crack a walnut.”
Criminal lawyer Nick Hanna, who is representing several of the protesters, believed it was “inevitable” that prosecutions against them would be unsuccessful.
“The maintenance of these prosecutions is untenable, and it’s time for the police to do the right thing and discontinue these prosecutions and that is exactly what we’re calling for now,” he said.
Upper house Greens MP Sue Higginson, a lawyer and the party’s justice spokesperson, said: “Premier Chris Minns has once again been pulled into line by the courts for inflicting unconstitutional laws on the people of NSW.”
Any charges “resulting from police activity at Town Hall need to be withdrawn”, Higginson said, and “civil liability in the tens of millions is inevitable”.
“People were harmed, their right to march to Parliament was unlawfully obstructed, and no doubt police were harmed too,” she said.
Higginson said the premier “needs to take responsibility for this”.
The NSW opposition, which had supported the laws, said the court’s decision was a result of the government rushing through complex legislation before it could be thoroughly examined.
Under the laws passed on December 24, 10 days after the Bondi massacre targeting the Jewish community, the police commissioner was empowered to make a public assembly restriction declaration (PARD) for up to 14 days. It could be extended for up to 90 days.
The police minister’s concurrence was required. The power to declare restrictions on protests could only be made in a terrorism-related context, but protests unrelated to the alleged terrorist act were captured.
Before making a declaration, the police commissioner had to be satisfied holding protests in the area would be likely to cause “a reasonable person to fear … harassment, intimidation or violence” or for their safety, or to cause “a risk to community safety”.
When the declaration was made for Herzog’s visit, it displaced an existing legal mechanism for authorising or prohibiting protests on a case-by-case basis.
Greg Barns, SC, spokesperson for the Australian Lawyers Alliance, welcomed the court decision and said the restrictions were “a knee-jerk reaction” to the Bondi attack.
“Laws that effectively ban protest and other forms of freedom of expression, or which severely curtail them, are in most cases anathema to a democratic society,” he said.
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Jessica McSweeney is a reporter at The Sydney Morning Herald covering state politics and urban affairs.Connect via email.