Restrictions trampled fundamental rights.
Photo: MSJ

Minns sent back to the drawing board.

ANTI-PROTEST LAWS STRUCK DOWN

The New South Wales Court of Appeal has struck down key anti-protest laws introduced by the state government in late 2025, ruling that the measures are unconstitutional and invalid in a decision with significant implications for civil liberties across Australia.

In a judgment handed down in April, the New South Wales Court of Appeal found that these provisions imposed an “unjustified burden” on the implied freedom of political communication, a constitutional principle recognised by the High Court of Australia.

While not explicitly written into the Constitution, this freedom has long been interpreted as essential to the functioning of Australia’s system of representative government.

The legislation, brought forward by the Minns government in the wake of post-Bondi security concerns, granted police sweeping powers to restrict or prevent public demonstrations. Central to the regime were mechanisms that allowed authorities to declare certain gatherings ‘prohibited’ on broadly defined public safety grounds.

The court concluded that the laws went beyond what was reasonably necessary to achieve their stated aims, including maintaining public order and protecting community cohesion.

In particular, the breadth of discretion afforded to police and the lack of adequate safeguards were seen as disproportionate, effectively allowing authorities to suppress lawful political expression. Legal experts say the ruling reinforces longstanding limits on legislative power when it comes to restricting protest activity.

By invalidating the provisions, the court has clarified that even in periods of heightened concern about public safety, governments must carefully calibrate laws, so they do not unduly infringe constitutional freedoms.

The immediate consequence of the decision is that the impugned provisions no longer have legal effect. This is expected to have flow-on impacts for a number of cases involving protesters who had been charged under the now-invalid framework.

Lawyers representing activists have indicated that some prosecutions may be discontinued, while others could be subject to appeal.

The decision has prompted a political response from the state government.

Minns has defended the intent behind the laws, arguing that they were ‘designed to balance the right to protest with the need to ensure public safety in a volatile environment’.

He has not ruled out pursuing alternative legislative approaches that would withstand constitutional scrutiny, although nothing is official as of yet.

Civil liberties organisations have welcomed the judgment, describing it as a significant victory for democratic rights. They argue that the invalidated laws risked setting a precedent for overly broad restrictions on dissent, particularly in relation to contentious political issues.

The case may yet have further legal ramifications, too.

Although the Court of Appeal is the highest court within New South Wales, the matter could be taken to the High Court of Australia, which would have the final say on the constitutional questions at stake. Any such appeal would shape the national landscape for protest law.

The ruling is likely to influence how other jurisdictions approach similar legislation as well. Governments around the country have in recent years explored stronger controls on protest activity, particularly where demonstrations intersect with infrastructure or public events.

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For now, the Court of Appeal’s decision stands as a clear statement that the boundaries of political expression remain protected, even amid an evolving landscape in Australia.

It is a good result to see for once, given that our implied right to political expression and communication has been attacked and destroyed in recent years – as the government looks to stamp out any remanence of our once-free and democratic society.

THE ATTACK ON FREEDOM

Federal and state governments have both passed successive legislative amendments in recent years that threaten our fundamental right to protest.

After the September 11 attacks, many countries – including Australia – expanded national security laws. In Australia, this led to a wave of ‘counterterrorism’ legislation in the 2000s.

While these laws were mainly aimed at preventing terrorism, critics argue they also had side effects on civil liberties, including protest rights.

For example, broader police powers, surveillance authorities, and restrictions on certain kinds of public gatherings could indirectly affect how protests are organised and monitored.

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That said, the more direct pressure on protest rights in Australia has arguably come later, particularly in the 2010s and 2020s.

Several states introduced laws targeting specific kinds of protest during this time.

For example, anti-coal and anti-mining protest laws in places like New South Wales and Queensland imposed heavy fines and penalties for disrupting major infrastructure.

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Laws aimed at environmental activists – sometimes framed around preventing “economic disruption” – have also been criticised as disproportionately harsh.

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During the COVID-19 ‘pandemic’, public health orders temporarily restricted gatherings, including protests, which raised additional concerns about civil liberties.

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Courts have pushed back at times. The High Court of Australia has recognised an “implied freedom of political communication” in the Constitution, which offers some protection for protest activity, though it’s not an explicit right and can be limited.

Typically, protests will be more successful in rulings than speech will – which is part of the reason there have been calls for a national Human Rights Act in this country for years.

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The suppression of rights was on full display in February, after a violent clash between NSW Police and protesters opposing the visit of Israeli President Isaac Herzog highlighted our descent into a world mirrored out of Nineteen Eighty-Four.

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Hopefully this ruling should help shift things back in the correct direction, although we know the government will be back – either via new legislation, or a High Court appeal.

For now, let’s take this small win as a sign that some judges can still hold up the rule of law.

Let your voices be heard, ladies and gentlemen!

There is an entire establishment fighting to ensure you no longer have that ability.