Balance Restored: When Justice Pushes Back & Laws are Struck Down
A cursory glance at the Australian Constitution will have you realising it is quite a standard document. There are no animated US-style proclamations of “We the People!”, nor are there any overtly humanitarian provisions. The consequence of this deliberate minimalism of human rights is that, contrary to popular belief, Australians do not possess a right to free speech. Our Constitution does not explicitly allow for it, and with no supplementary Bill of Rights, our parliaments are granted much scope in enacting legislation that infringes upon Australian speech.
There is, however, one caveat. The implied freedom of political communication was first recognised by the High Court of Australia in the companion cases of Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (1). The freedom is derived from the text and structure of the Constitution, and particularly those provisions which together establish the system of representative and responsible government (2). Although there is no explicit provision guaranteeing freedom of speech, the High Court reasoned that a system of government by representatives “directly chosen by the people” cannot function without the free flow of political information (3). Freedom of political communication, including (as we will come to see) freedom to protest political material, is “an indispensable incident” of Australia’s constitutionally prescribed system of government (4).
A law enacted by the legislature will be unconstitutional if it impermissibly burdens the implied freedom of political communication, whether in its terms, operation or effect (5). This reflects Sir Gerard Brennan’s warning that, “[w]ithout the rule of law as we know it, we would experience tyranny and oppression” (6), because constitutional limits exist to prevent legislative power from descending into arbitrary restriction of political discourse.
The Protest Laws
The anti-protest laws introduced by the Minns government, and pushed through in a rushed emergency sitting in late December 2025, have fallen. Led by Elizabeth Ann Jarrett and supported by representatives of Blak Caucus and the Palestinian Action Group, a constitutional challenge was brought with solicitor Nick Hanna of Hanna Legal acting in the proceedings. The NSW Court of Appeal struck down the laws, finding them invalid as they placed an unconstitutional burden on the implied freedom of political communication. Immediately following the decision, Nick Hanna described the outcome as “one of the most important wins for civil liberties in our nation’s history” (7). This is the second time in six months that a Minns government anti-protest law has been found unconstitutional (8).
The law created a system of Public Assembly Restriction Declarations (PARD). It meant police could block protest organisers from using the Form 1 process under the Summary Offences Act 1988 (NSW) (‘Summary Offences Act’) to obtain authorised public assembly status in declared areas following a terror event for up to three months. Police declared restrictions over Sydney within hours of the law commencing, and extended them four times until 17 February 2026. This included the Town Hall protest against Israeli President Isaac Herzog’s visit on February 9, which saw mass arrests and police violence (9).
Constitutionally, the law did not target specific unlawful conduct. Rather, it imposed a broad “sweeping and indiscriminate” restraint on all forms of public assembly across a large geographic area, which could then criminalise protestors (10). The Court said the scheme was "a blunt tool" and rejected the NSW government’s reliance on "social cohesion" as a sufficient justification for suppressing public protests across a large geographical area (11). The laws had a chilling effect on freedom of speech, and the Court held that quelling assemblies to manage community tension was not constitutionally permissible in this sweeping form (12).
The decision confirms that protest is not a dispensable inconvenience that can be switched off in politically sensitive moments. Rather, it portrays protests as a fundamental part of democracy and how people communicate political demands, dissent from government policy, and hold power to account in public. The ruling is a significant win for civil and political rights. It highlights to the Minns government that rushed laws without in-depth community consultation and knee-jerk crackdowns on fundamental rights have no place in a democracy.
The outcome of this judgment has a practical importance beyond abstract constitutional doctrine. In the context of the Palestine protests, the February 9 Herzog protest cannot be ignored. Although police relied on a Major Events Declaration, the now invalid PARD had already been cited on the day, including in at least one fact sheet issued to an arrestee. The PARD being in place had, in effect, substantially extinguished the organisers’ ability to avail themselves of the prescribed Form 1 process, as any notification of intention to hold a public assembly would be automatically revoked. This deprived organisers of an ordinarily available opportunity to engage regarding an agreed march route, and the legal protections afforded to authorised public assemblies under the Summary Offences Act. Essentially, the PARD created the conditions in which the subsequent unreasonable and disproportionate police response, including violence and arrests, occurred. This was both foreseeable and avoidable, and therefore warrants serious scrutiny.
The operation and practical effect of such laws are rarely experienced evenly or equally. Rather, they tend to impose a disproportionate burden upon vulnerable and at-risk groups, who are more likely to bear the most serious adverse consequences. Those in attendance on February 9 reflected a diverse cross-section of the community. All of whom were exposed to unreasonable risk, with many subjected to direct trauma. This included countless First Nations people, Muslim worshippers and leaders, politicians, people from marginalised communities, as well as elderly and young protesters (13).
Concerningly, rather than acknowledging and confronting the dangers inherent in the hurried enactment of unconstitutional legislation, Chris Minns has doubled down, calling it “rational and proportionate” (14). He has insisted that protestors should “take responsibility” (15). At a time when the community is demanding accountability and where public trust in elected leaders and police has been significantly eroded, such language undermines the principles of responsible government and social cohesion. Especially in the context where NSW Police Commissioner Mal Lanyon has confirmed that the Herzog visit was “certainly a factor” in extending the unconstitutional powers (16). This highlights the improper purpose for which the law was exercised and reinforces the extent to which the resulting events were both foreseeable and avoidable. Chris Minns rhetoric may reflect a disquieting disregard for judicial oversight, and may raise concern that legislative power is being used to constrain dissent and protest rather than uphold constitutional limits.
The decision represents more than a technical win in court and may have substantial and far-reaching implications. It is a landmark rejection of sweeping police powers cloaked in the rhetoric of public order and “social cohesion.” The February 9 Herzog protest is already under investigation by the Law Enforcement Conduct Commission for widespread police misconduct, and the ruling strengthening calls for charges against protesters to be dropped. The judgment may prove significant as the Minns Government shifts its focus toward proposed hate speech laws, akin to those that have attracted substantial criticism in Queensland, to prohibit phrases such as “from the river to the sea” and “globalise the intifada” (17).
Ultimately, while this was a ruling about constitutional limits, it also concerned the political culture surrounding protest in NSW, that of a glaring trend towards stifling dissent and criminalising protest (18). The court found that the state government cannot impose a broad executive scheme that denies the right to protest in the name of social cohesion. In that sense, this case was both a legal defeat for the Minns government and a wider affirmation that in a democracy, the NSW government is not “immune from supervision and restraint” (19), and must respect the implied constitutional freedom of political communication.
Written by Adam Al-hayek, Maymounah Awad, and Tazmin Sultana (Social Justice Team)
References as follows:
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (‘Nationwide News’); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘ACTV’).
The Australian Constitution ss 7, 24, 64, 128.
Ibid ss 7, 24; Nationwide News (n 1); ACTV (n 1).
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 559 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
Ibid.
Sir Gerard Brennan, ‘“Courts for the People – Not People’s Courts”’ (Speech, Inaugural Deakin Law School Oration, 26 July 1995) 9.
Jordyn Beazley, ‘NSW should think twice before banning ‘globalise the intifada’ after court struck down anti-protest law, legal expert says’, The Guardian (online, 18 April 2026).
Jarrett v State of New South Wales [2026] NSWCA 62 (‘Jarrett’).
Jordyn Beazley and Stephen Byrne, ‘An ‘impossible’ situation or ‘unhinged’ police? Inside the chaos at Sydney’s anti-Herzog protest’, The Guardian (online, 14 February 2026) <https://www.theguardian.com/australia-news/2026/feb/14/inside-the-chaos-at-sydney-anti-herzog-protest-ntwnfb>.
Jarrett (n 8) [4], [6], [86].
Ibid [134]-[137], [143], [157]-[158].
Ibid [143].
Jordyn Beazley, ‘Woman, 69, in hospital with broken vertebrae after police allegedly pushed her to the ground at Sydney Herzog protest’, The Guardian (online, 10 February 2026) <https://www.theguardian.com/australia-news/2026/feb/10/woman-four-broken-vertebrae-sydney-protest-isaac-herzog-police-ntwnfb>; Shannon Corvo and Jean Kennedy, ‘Muslim leader urges public apology over police 'manhandling' at Sydney protest’, ABC News (online, 12 February 2026); Mohamed Duar, ‘The Indignity of Herzog’s Visit’, Amnesty International (Web Page, 24 February 2026) <https://amnesty.org.au/the-indignity-of-herzogs-visit/>; Shannon Corvo, ‘Mother of teenager allegedly assaulted by NSW Police at Sydney protest to press charges’, ABC News (online, 11 February 2026) <https://www.abc.net.au/news/2026-02-11/nsw-police-protest-allegedly-assaulted-teenager-mother-claims/106329674>; Freddy Pawle, ‘Minns under fire after Greens politicians allegedly assaulted by police at Sydney anti-Herzog protest’, 7 News (online, 10 February 2026) <https://7news.com.au/news/minns-under-fire-after-greens-politicians-allegedly-assaulted-by-police-at-sydney-anti-herzog-protest-c-21586634>.
Jordyn Beazley and Penry Buckley, ‘Minns doubles down on ‘rational’ anti-protest law despite NSW’s highest court ruling it unconstitutional’, The Guardian (online, 20 April 2026) <https://www.theguardian.com/australia-news/2026/apr/20/minns-doubles-down-anti-protest-law-despite-nsw-highest-court-ruling-it-unconstitutional-ntwnfb>.
Jessica McSweeney, ‘’’Take responsibility’: Premier speaks out as police review protest charges’, Sydney Morning Herald (online, 20 April 2026) <https://www.smh.com.au/politics/nsw/take-responsibility-premier-speaks-out-as-police-review-protest-charges-20260420-p5zpbx.html>.
Ben Doherty, ‘Who is Israel’s president Isaac Herzog and why is his visit to Australia expected to prompt mass protests?’, The Guardian (online, 4 February 2026) <https://www.theguardian.com/australia-news/2026/feb/04/isaac-herzog-israel-president-australia-visit-controversy-ntwnfb>.
Alexander Lewis, ‘Chris Minns considers his options after court ruling over NSW protest laws’, ABC News (online, 18 April 2026) <https://www.abc.net.au/news/2026-04-18/nsw-chris-minns-failed-law-changes-analysis/106576208>.
Kirk v Industrial Court of New South Wales (2010) HCA 1; (2010) 239 CLR 531, 581 [99].
Ibid (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).