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| Could a landmark court decision undermine the right to peacefully protest in NSW? | Could a landmark court decision undermine the right to peacefully protest in NSW? |
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| Human rights advocates fear new ruling could deter people from using system designed to facilitate protests – and expose them to risk of criminal charges | Human rights advocates fear new ruling could deter people from using system designed to facilitate protests – and expose them to risk of criminal charges |
| A pro-Palestine march to the Sydney Opera House has been blocked by a court. Here’s what protesters will do instead | A pro-Palestine march to the Sydney Opera House has been blocked by a court. Here’s what protesters will do instead |
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| People organising protests in New South Wales could face a tough choice after this week. | People organising protests in New South Wales could face a tough choice after this week. |
| On Thursday, the NSW court of appeal made a landmark ruling that criminalises attending a “prohibited” protest. It came as part of a judgment that banned a planned pro-Palestine march to the Sydney Opera House scheduled for the weekend. | On Thursday, the NSW court of appeal made a landmark ruling that criminalises attending a “prohibited” protest. It came as part of a judgment that banned a planned pro-Palestine march to the Sydney Opera House scheduled for the weekend. |
| Before this, protesters, police, and even the courts had consistently considered that a court ruling prohibiting a protest did not mean the protest itself was unlawful. It merely exposed a person to potentially being charged if they committed certain actions under the Summary Offences Act. | |
| For example, if the courts prohibited a protest at a certain location, but people turned up anyway, they wouldn’t be charged unless they were obstructing traffic and ignored a move-on order, were causing harm, or were near a place of worship. | |
| But now a demonstrator’s mere presence at a banned protest could expose them to being found in contempt of court if they’re found to have knowledge of the court order, or potentially charged for knowingly joining an unlawful assembly. | But now a demonstrator’s mere presence at a banned protest could expose them to being found in contempt of court if they’re found to have knowledge of the court order, or potentially charged for knowingly joining an unlawful assembly. |
| Advocates are now raising concerns it could undermine the “form 1” system, which was initially set up to encourage the right to protest. | Advocates are now raising concerns it could undermine the “form 1” system, which was initially set up to encourage the right to protest. |
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| Under the regime introduced in NSW in 1979, protest organisers can apply to police ahead of time using a notice of intention to hold a public assembly – commonly known as a form 1. If police oppose the form 1, the supreme court has the final say over whether the protest will be “authorised” or “prohibited”. | Under the regime introduced in NSW in 1979, protest organisers can apply to police ahead of time using a notice of intention to hold a public assembly – commonly known as a form 1. If police oppose the form 1, the supreme court has the final say over whether the protest will be “authorised” or “prohibited”. |
| Sarah Schwartz, a legal director at the Human Rights Law Centre, said she fears the new ruling could deter people from using the system. | Sarah Schwartz, a legal director at the Human Rights Law Centre, said she fears the new ruling could deter people from using the system. |
| “It really means that people are now going to have to make a choice,” she said. | “It really means that people are now going to have to make a choice,” she said. |
| “I would say it’s kind of the opposite of having a system that facilitates peaceful protest because it means that there’s an incentive now for people not to make an application under this system.” | “I would say it’s kind of the opposite of having a system that facilitates peaceful protest because it means that there’s an incentive now for people not to make an application under this system.” |
| As one organiser told Guardian Australia: “Why would I now risk turning a lawful right to assemble into an unlawful one?” | As one organiser told Guardian Australia: “Why would I now risk turning a lawful right to assemble into an unlawful one?” |
| Meanwhile, Stephen Blanks, a spokesperson for the NSW Civil Liberties Council, said he’s concerned that the contempt of court risk extends not just to the defendants, but to everyone. | |
| “It has never been contemplated in any case over the last 20 years that people who are not parties to these court proceedings could be subject to contempt of court,” he said. | “It has never been contemplated in any case over the last 20 years that people who are not parties to these court proceedings could be subject to contempt of court,” he said. |
| However, the police say they don’t expect it to lead to fewer form 1 applications. | However, the police say they don’t expect it to lead to fewer form 1 applications. |
| “I think, by and large, people want to work with the police, and they want to get the outcome they want. They don’t want the conflict, we don’t want the conflict and we want to make sure people are safe,” the assistant commissioner Peter McKenna told reporters shortly after the judgment was delivered. | “I think, by and large, people want to work with the police, and they want to get the outcome they want. They don’t want the conflict, we don’t want the conflict and we want to make sure people are safe,” the assistant commissioner Peter McKenna told reporters shortly after the judgment was delivered. |
| McKenna had told reporters last week after police knocked back the Palestine Action Group’s application to march to the Opera House that such decisions had only gone before the supreme court two or three times this year. | McKenna had told reporters last week after police knocked back the Palestine Action Group’s application to march to the Opera House that such decisions had only gone before the supreme court two or three times this year. |
| One of the protest groups that went before the court last year after the police knocked back their form 1 on safety grounds was Rising Tide. | One of the protest groups that went before the court last year after the police knocked back their form 1 on safety grounds was Rising Tide. |
| The court sided with police, but the organisers went ahead with the protest anyway. | The court sided with police, but the organisers went ahead with the protest anyway. |
| The police facilitated the protest, however confined it to an area so that it wouldn’t disrupt the coal ships. After some people went outside the boundary in an attempt to try to stop the ships, 173 people were arrested and 130 were charged for blocking a major facility. Of those not charged, 29 were fined under the Marine Safety Act for obstructing a vessel, and 14 people aged under 18 were not charged. | The police facilitated the protest, however confined it to an area so that it wouldn’t disrupt the coal ships. After some people went outside the boundary in an attempt to try to stop the ships, 173 people were arrested and 130 were charged for blocking a major facility. Of those not charged, 29 were fined under the Marine Safety Act for obstructing a vessel, and 14 people aged under 18 were not charged. |
| Rising Tide will host their next blockade of the Newcastle Port in just over a month. Zack Schofield, a spokesperson for the group said they plan to submit a form 1 because they have been requested by the Newcastle city council to do so. | Rising Tide will host their next blockade of the Newcastle Port in just over a month. Zack Schofield, a spokesperson for the group said they plan to submit a form 1 because they have been requested by the Newcastle city council to do so. |
| “We use the form 1 system to engage in good faith,” he said. | “We use the form 1 system to engage in good faith,” he said. |
| Schofield said it remained to be seen what the group would do this year if the court blocks them again. | Schofield said it remained to be seen what the group would do this year if the court blocks them again. |
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| But he said: “If I or any other Rising Tide organiser are arrested for contempt of court or disobeying a prohibition order, we will appeal that decision on behalf of all Australians to the high court, because we believe it is fundamentally unconstitutional.” | But he said: “If I or any other Rising Tide organiser are arrested for contempt of court or disobeying a prohibition order, we will appeal that decision on behalf of all Australians to the high court, because we believe it is fundamentally unconstitutional.” |
| Whether or not it could be found unconstitutional remains murky. Anne Twomey, a professor in constitutional law at the University of Sydney, said the implied freedom of political communication is not absolute. | Whether or not it could be found unconstitutional remains murky. Anne Twomey, a professor in constitutional law at the University of Sydney, said the implied freedom of political communication is not absolute. |
| “There is no breach of the implied freedom if the law is reasonably appropriate and adapted to achieve another legitimate end,” she said. | “There is no breach of the implied freedom if the law is reasonably appropriate and adapted to achieve another legitimate end,” she said. |
| In the case of the proposed Opera House march this weekend, for example, she said the court stressed the serious public safety concerns that would arise if the protest went ahead in that particular location. | In the case of the proposed Opera House march this weekend, for example, she said the court stressed the serious public safety concerns that would arise if the protest went ahead in that particular location. |
| “Public safety is a legitimate end which the courts have previously accepted as a ground for permitting limitations on political protests, as long as the limitations are proportionate,” she said. | “Public safety is a legitimate end which the courts have previously accepted as a ground for permitting limitations on political protests, as long as the limitations are proportionate,” she said. |
| Justice Stephen Free said when reading out the reasons to prohibit the Opera House march: “The court further held that the risk to public safety associated with this public assembly was so significant that it would be irresponsible to allow the public assembly to proceed irrespective of the political significance of the event and the importance of freedom of political expression.” | Justice Stephen Free said when reading out the reasons to prohibit the Opera House march: “The court further held that the risk to public safety associated with this public assembly was so significant that it would be irresponsible to allow the public assembly to proceed irrespective of the political significance of the event and the importance of freedom of political expression.” |
| There are divergent views about the value of the form 1 system. The NSW Council for Civil Liberties has been urging the Minns government to scrap it, and it doesn’t exist in Victoria. | There are divergent views about the value of the form 1 system. The NSW Council for Civil Liberties has been urging the Minns government to scrap it, and it doesn’t exist in Victoria. |
| The premier of Victoria, Jacinta Allen, has consistently pushed back on calls for the state to follow NSW in adopting it. | The premier of Victoria, Jacinta Allen, has consistently pushed back on calls for the state to follow NSW in adopting it. |
| “In my mind that runs the risk of being a very lengthy, unwieldy, time-consuming process for both the police force and the court system and it does not give a guarantee that each and every event would be undertaken peacefully,” Allan has previously said. | “In my mind that runs the risk of being a very lengthy, unwieldy, time-consuming process for both the police force and the court system and it does not give a guarantee that each and every event would be undertaken peacefully,” Allan has previously said. |
| Greens spokesperson for justice, Sue Higginson, says the system is useful, but only if its used in the way it was intended when it was first introduced: to facilitate genuine protests – particularly as protests escalate to reflect the scale of the issues they are trying to tackle, such as genocide and climate collapse. | Greens spokesperson for justice, Sue Higginson, says the system is useful, but only if its used in the way it was intended when it was first introduced: to facilitate genuine protests – particularly as protests escalate to reflect the scale of the issues they are trying to tackle, such as genocide and climate collapse. |
| Higginson argued this was reflected in Justice Belinda Rigg’s authorisation of the Palestine Action Group’s march across the Sydney Harbour Bridge, which attracted an estimated 225,00 to 300,000 people. | Higginson argued this was reflected in Justice Belinda Rigg’s authorisation of the Palestine Action Group’s march across the Sydney Harbour Bridge, which attracted an estimated 225,00 to 300,000 people. |
| In her judgment, Rigg said: “The march at this location is motivated by the belief that the horror and urgency of the situation in Gaza demands an urgent and extraordinary response from the people of the world.” | In her judgment, Rigg said: “The march at this location is motivated by the belief that the horror and urgency of the situation in Gaza demands an urgent and extraordinary response from the people of the world.” |