NSW anti-protest laws: Will they be allowed to stand?

NSW Premier Chris Minns

NSW Premier Chris Minns speaks at NSW Parliament in Sydney. Source: AAP / DOMINIC LORRIMER/AAPIMAGE

Measures to restrict protests in New South Wales are being debated in a two-day session in the New South Wales Parliament. A coalition of groups say they plan to launch a legal challenge, calling the proposals a serious threat to democracy.


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TRANSCRIPT

Opponents of legislation to curtail protests in New South Wales following the Bondi mass shooting have announced a constitutional challenge.

A coalition of advocates has formed to denounce the laws as reactionary, divisive and dangerous for democracy.

"The constitutional challenge we're launching, we're planned to have three co-applicants to that, and that's going to be the Palestine Action Group, Jews Against the Occupation, and the Blak Caucus, who have a big interest in this, in a pressing sense, because of course there is the annual invasion day march coming up on the 26th of January. We have record levels of black deaths in custody going on right now under this Chris Minns government, and that is one crucial, pressing reason why we need to preserve the right to protest."

That was Josh Lees, an organiser with the Palestine Action Group, which has organised mass protests against Israel's military campaign in Gaza.

The New South Wales Council for Civil Liberties, the Jewish Council of Australia, and others have also come out against the reforms.

Premier Chris Minns has defended the laws, saying he fears for social cohesion if protests are allowed to go ahead immediately after terrorism events.

"These are important changes, but they're necessary, we believe, to live up to the number one priority of any government in office - the number one priority for any political leader, any government or any parliament - and that is to protect its citizens."

He's explained how the laws would work.

"When a terrorist incident is formally declared under the Terrorism (Police Powers) Act, the Police Commissioner or Deputy Commissioner of Police, with the agreement of the Minister for Police, will be able to declare a specific area where the public assemblies are restricted for a period of time - a public assembly restriction declaration. That might be any part of the state, or all over the state. No public assemblies in a designated area will be able to be authorised, including by a court."

Mr Minns says the laws are necessary to protect social cohesion.

"My view about these protests has been that it is unleashing forces in our community that are not being contained. When you see people marching and showing violent, bloody images, images of death and destruction, it's unleashing something in our community that the organisers of the protests can't contain, and the truth of the matter is we can't risk another mass demonstration on that scale in New South Wales. The implications can be seen, in my view, on Sunday."

Josh Lees has expressed his horror at the antisemitic Bondi attack, and says Palestine Action had no plans for protests in the near future, but argues the laws are part of a smear campaign.

"It's a concerted campaign being waged by some to try to link the horrific Bondi attack to the Palestine protest movement is so ludicrous. It's so deliberately dishonest, and it is so outrageous."

The New South Wales Jewish Board of Deputies has issued a statement supporting the laws, but didn't respond to a request for an interview.

The Jewish Council of Australia, where Dr Naama Blatman is an Executive Member, is standing against the laws.

"The anti-protest laws being pushed through by the Minns Government are not going to make us safer. These laws are born of political pressure, not a genuine consideration for the safety of our communities. What happened in Bondi was an evil antisemitic attack, but let it be very clear, there is nothing connecting this attack to the movement for justice in Palestine."

Dr Blatman has spent most of her life in Israel - and says it's important the Israeli goverment is held to account.

"We are furious about these statements, as they dangerously and outrageously link our criticism of Israel and the genocide it's committing in Gaza to the radical Islamic State ideology that seems to have informed and inspired the attack in Bondi but as we have made abundantly clear over these past two years and prior, criticism of Israel, as harsh as it may be, is not equivalent to antisemitism."

Ahead of parliamentary debate the Coalition signalled support for the legislation, but it's opposed by the Greens.

This is Sue Higginson, Greens spokesperson for Justice and Attorney General, and one of several politicians who joined the iconic March for Humanity across the Harbour Bridge.

"Nearly 300,000 good Australians came together. They marched across the Bridge for our united good, humanity. You cannot now rewrite history. That is an event that happened in our time, on our watch. It was a profound moment, people from everywhere came in the pouring rain, and they marched for humanity. We marched together."

Police had tried to block that protest, but it was allowed to go ahead by the courts - and these are the type of protections the proposed legislation would take away.

Professor Anne Twomey is an expert in constitutional law.

Sh says it will be for a court to decide whether the laws impermissibly (not allowed or justified) burden the constitutionally protected implied right to political communication.

"So, in this particular circumstance, there are sort of, you know, points on both sides. On one side, the law itself doesn't actually ban protests, okay? All it does is take away the ability to authorise the protest."

That means protestors won't have the benefit of legal protections against offences relating to obstructing traffic or persons that organised mass demonstrations typically do.

Professor Twomey says the law will also mean police can't coordinate with protestors to try and minimise disruption and protect public safety, because they can't authorise a protest.

"So it's not a blanket ban. If it was a blanket ban, it would be more likely to be constitutionally invalid. It also has some protections built in. So these declarations can only be made for limited periods, so a period of only up to 14 days, and that can be extended for different 14 day periods up to a maximum 90 days. So a court would take into account those kinds of limitations. Also the fact that the Police Minister has to authorise it as well as the Commissioner of Police."

On the other hand, she says, the law is very broad.

"We've got the fact that it actually is very broad, because it applies to all public assemblies, regardless of the nature of the public assembly, and it potentially applies to a really broad area, potentially up to the entire state, rather than just being focused on a particular area that has been impacted by a terrorist incident. So on the one side, it's probably overly broad, and on the other side you've got some levels of protection, and the question then is going to be simply for a court as to how it balances those sorts of things."

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