Pro-Palestine activist challenges NSW over ‘ugly’ anti-protest laws that could have a ‘chilling’ effect

An activist has launched a constitutional challenge over controversial legislation that could have a “chilling” effect.

An activist is challenging controversial anti-protest laws in NSW, with lawyers arguing the broad and undefined legislation could have a “chilling” effect as protesters and police are unable to determine the reach of its powers.

Joshua Lees has launched a constitutional challenge action against the state of NSW’s anti-protest laws on behalf of the Palestine Action Group (PAG.

The new protest laws give police fresh powers regarding protests at or near places of worship and were brought in on February 20 – less than a month after news of the Dural caravan broke.

Speaking outside court, Mr Lees said the laws were broad, undefined, and threatened democratic rights as “almost everywhere” PAG protests was near a place of worship.

Activist Joshua Lees is challenging the state of NSW over controversial anti-protest laws. Picture: NewsWire / Jeremy Piper

One of a large legal team representing Mr Lees, Peter O’Brien, from O’Briens Solicitors, claimed outside court that the laws were not about protecting parishioners, and the legislation didn’t comment on harassing, menacing or intimidating parishioners.

He said it was a “stretch too far” and undermined the constitutional right to protest that could lead to “ugly, miserable experiences for democracy”.

“If police are given that … it leads to ugly, ugly results, and that is the real concern that we have,” Mr O’Brien said.

“It is unconstitutional. It is undermining the right freedom of assembly, and that is, I say, axiomatic and foundational to the right that we have in democracy.”

A rally erupted outside the Supreme Court on Thursday before proceedings began, with Mr Lees noting this was a good example of the law’s ambiguity, given the proximity to nearby churches.

A rally took place before proceedings got under way in the Supreme Court on Thursday. Picture: NewsWire / Jeremy Piper

“If the police wanted to, technically right now they could say we are protesting near a place of worship,” Mr Lees said.

Minutes later, his supporters filled the courtroom, with Justice Anna Mitchelmore inviting them to be seated at the empty bar tables.

Mr Lees’ lawyer Felicity Graham told the court the language of a person being near a place of worship left police with a “broad decisional area”, and there would be difficulty in creating precise boundaries.

Many critical protest sites were “very likely” to be vulnerable to the new laws, the court was told, particularly given most protests take place in city centres both for the accessibility of attendees and also to draw attention.

Ms Graham argued the imputed provision of the law stretched police powers “beyond its legitimate bounds when analysed for constitutional validity”.

“At the heart of this case is a simple but critical question,” she said. “Would the imputed law permit police to direct protesters to move on or desist from their protest action because they are near a place of worship, even if there’s no basis to believe that any worshipper is obstructed, harassed, intimidated or caused to feel fear?” Ms Graham said.

“The plaintiff says in certain circumstances the answer is yes.”

Mr Lees launched the action on behalf of Palestine Action Group. Picture: NewsWire / Jeremy Piper

Craig Lenehan SC, also on behalf of Mr Lees, said the legislation could leave those who wished to protest in “ambiguous positions”.

“It, we say, amplifies and intensifies the chilling effect of the provisions because in short, as Your Honour would be aware, it means that both protesters and police officers cannot determine the reach of the powers,” Mr Lenehan said.

He described the legislation as having a “cascading series of ill-defined discretions” with very broad police powers that could resign protesters to simply staying home out of fear of criminal sanctions.

Michael Sexton SG SC argued the legislation was confined to protecting those who were attending or leaving a place of worship, and police would also take into account the conduct of protesters when acting on the powers.

He argued the legislation was intended to be read along with other laws in order to give police appropriate context.

“It really does confine the operation of the provisions, and as I say, it is difficult in my submission to think of an example where the provisions would operate in the absence of conduct directed to persons attending,” Mr Sexton told the court.

He argued the legitimate purpose of the law was to protect parishioners, and that the validity of the provisions wasn’t affected by exemptions for industrial action and the ability for the person in charge of places of worship to authorise protests.

“What the court cases say on the question is that it’s not the effect of law on individuals but it’s the effect on the community as a whole that’s an issue,” Mr Sexton said.

Many turned out to support Joshua Lees. Picture: NewsWire / Jeremy Piper

“In this instance this question has an effect on political communication in general … but the fact that there are two, as it were exemptions, in the legislation doesn’t go to the question of its validity.”

However Mr Lenden said the “indeterminate word ‘near’” a place of worship gave no basis to connect the provision to suggestions the legislation was confined to those accessing a place of worship.

“The term ‘near’ is expressed in objective terms, and yet as we understand the way Mr Sexton approaches it, that is something on which it is left to the officer to form a belief on apparently reasonable grounds – now which of those possible alternatives it is, is nowhere involved in the text because this entire enterprise is lacking from the text,” Mr Lenden said in his reply to Mr Sexton’s submissions.

“That constructional indeterminacy tells Your Honour about the submissions – it is hopelessly seeking Your Honour to do judicial surgery to words that cannot support that leading.”

Activist’s Dural caravan claim

Mr Lees earlier accused NSW Premier Chris Minns of passing the laws under a cloud of “lies and conspiracy” while speaking outside court, insinuating the Premier knew the Dural caravan was part of a con job when the laws were rushed through.
Rather than a potential anti-Semitic attack, an explosives-laden caravan found at Dural in Sydney’s northwest was a fake terrorism plot with ties to organised crime, police later revealed.

“This entire Dural caravan episode, this hoax that was going on at the time – the Minns government knew actually that this was all part of a criminal con job and yet he kept the public and the parliament in the dark about this whole affair while he rushed through laws which take away our right to protest,” he said.

Mr Minns on Thursday said the government stood by the protest crackdown, maintaining his stance that the laws were “valid” while noting people have the right to challenge them if they wish.

“I’ll note that the applicant … suggested that the government again was part of some plot or conspiracy in relation to the dural caravan investigation, mirroring some of the more obtuse commentary from members of the cross bench and upper house,” Mr Minns said at a press conference.