The altercation between police and protesters thatleft Hannah Thomas in hospital with a serious eye injuryhas reanimated a perennial issue in New South Wales – the right to protest.
The former Greens candidate, who ran against Anthony Albanese in the seat of Grayndler at the federal election, was charged alongside four others after attending a protest in Sydney outside a business allegedly involved in supplying services for parts used in Israeli jets (which the company denies). She has blamed the NSW government’s “draconian anti-protest laws” for her injury, claiming they have “emboldened” the police in interactions with protesters. NSW police said after a preliminary review of body-worn video of her arrest that there was no information to indicate misconduct.
Here are the basics of the protest laws in NSW, and how they have changed.
There is not an express right to protest in NSW, but it’s covered in common law and by the Australian constitution, which the high court has found implies the right to freedom of political communication.
Governments cannot create laws that significantly impede this right. However, there are many laws that critics claim have eroded it.
Courts can overturn such laws if they are found to be constitutionally invalid, andhave done so.
Tim Roberts, the president of the NSW Council of Civil Liberties, says a protest itself cannot be considered unlawful.
However, an individual protester can be charged with an offence based on their conduct during the protest – for example, if they fail to comply with a move-on direction by police.
No. However, protest organisers can apply to police ahead of time using aNotice of Intention to Hold a Public Assembly– commonly known as the “form 1” process.
Protesters submit the form to NSW police outlining details such as which roads the protest intends to march along.
It is not mandatory for organisers to use this process. But if they do, and police accept the details on the form, protesters can be protected from being charged.
If police oppose the form 1, a court has the final say. Earlier this year, the court sided with police after they knocked back a form 1 submitted by the climate groupRising Tide, which planned to blockade the Newcastle port.
Organisers went ahead with the protest regardless. The court decision simply meant the protesters were not protected from being charged under protest laws if, for example, they obstructed a major facility, or failed to comply with a move-on direction.
Police move-on powers are limited if the protest has an approved form 1.
For protests that don’t – which tend to be snap protests – the Law Enforcement Powers and Responsibilities Act (Lepra) states that police may issue a move-on order if protesters obstruct traffic or a person poses a “serious risk” to someone else’s safety.
But in February police powers were expanded in laws that one Labor MP reportedlydescribed during an internal meetingas the most “draconian” change to protest law in decades.
Under the change, police can issue a move on-order if a protest is taking place near a place of worship. The protest does not need to be directed at the place of worship or even about religion.
The legislation does not define “near” – this is at the police’s discretion.
Sites in Sydney where protests commonly take place, such as Town Hall and Hyde Park – are close to places of worship.
Police are required to give a move-on direction as a first warning. If a protester does not comply, they can be arrested and charged.
This law has been mired in controversy. It was passed as part of a suite of reforms aimed at curbing antisemitism – and which are now the subject of an inquiry exploring whether parliament wasmisled before passing the laws.
The catalyst for the laws was not a religious event, but a protest outside a synagogue at which a member of theIsrael Defense Forces was speaking.
It is also facing aconstitutional challengefrom the Palestine Action Group.
Other laws have been introduced in recent years, primarily to target climate protests.
In 2022, the then NSW Liberal government legislated – with support from Labor – a maximum penalty of two years in prison and a $22,000 fine for protesters who obstruct facilities such as ports and transport hubs. The penalty also applies to protests on main roads. This was passed in response to a protest by the climate group Blockade Australia.
David Mejia-Canales, a senior lawyer at the Human Rights Law Centre, says people feel they must get permission for a protest, even though that is not the case.
He says this feeds into language used by police such as a protest being “unauthorised”.
“In New South Wales, the anti-protest regime is probably the most dire in the country,” he says.
He says this is for multiple compounding reasons, including that NSW has more anti-protest laws than any other state. NSW also has the second highest maximum financial penalty for obstructing main roads and major facilities – South Australia has the highest maximum financial penalty at $50,0000.
Mejia-Canales also says the laws are “broad and vague”, which makes it a challenge for protesters to know whether or not they broke the law. Police have been given a lot of discretionary power over applying protest law and also via the form 1 system, he adds.
The centre has argued more than49 laws introduced by federal and state governmentsover the past two decades have eroded the right to protest.
Its report found NSW had introduced more laws than any other jurisdiction. Since the report was released last year, the Minns government has introduced two more laws – an offence of blocking railways, enacted after Blockade Australia shut downtrain lines in Newcastle, and the law around protests near places of worship.
Roberts says successive state governments have increasingly reacted to protest movements – particularly climate and now the pro-Palestine movements – by introducing more legislation.
He argues that place of worship changes are so broad that it is unclear to a protester whether they are in breach or not.
Chris Minns says there is a balance to be struck between the right to protest and the rights of non-protesters, and that doing so is often difficult.
“Like big cities right around the world, you do have to deal with everybody’s right to enjoy their city, to go to church, to go to a mosque, to enjoy recreation on the weekends free from harassment or vilification, alongside the public’s right to protest,” the premier told reporters.
In February, Minns said he did not believe the broad nature of the laws restricting protests near places of worship had left them open to misuse.
“We do put a lot of trust in NSW police, and I believe that they exercise it judiciously,” he said.