EDO: Supreme Court rules parts of NSW anti-protest laws are unconstitutional

Parts of harsh anti-protest laws passed in NSW last year have been found to be unconstitutional after a legal challenge by two Knitting Nannas protesters who argued they impermissibly burdened the implied freedom of political communication.

Two Knitting Nannas, Helen Kvelde and Dominique Jacobs, took legal action to defend the right to protest in October 2022, after the NSW Government passed new laws following a series of climate-related demonstrations. 

On behalf of Helen and Dom, the Environmental Defenders Office launched a constitutional challenge to s 214A of the Crimes Act 1900 that criminalised certain conduct such as remaining  “near” any part of a “major facility” (such as Martin Place Station) if that conduct “causes persons attempting to use the major facility to be redirected”, on the basis it impermissibly burdens the implied freedom of political communication.  

The Nannas also asked the court to find the amendments to the Roads Regulation 2018 that altered the definition of “major bridge, tunnel or road” under s 144G of the Roads Act 1993 beyond regulation-making power and therefore invalid. 

Today, the Supreme Court upheld parts of the constitutional challenge, declaring parts of s 214A of the Crimes Act are invalid because they infringe on the implied freedom of political communication. However, the court found the amendments to the Roads Regulation 2018 valid. 

In delivering his reasons Justice Walton said: “Section 214A imposes an unjustified burden on the implied freedom to communicate on governmental and political matters, which is an indispensable incident of the constitutionally prescribed system of government … [this] conclusion concerns the provision of subs 214A (1) (c) (vis-a-vis the partial closure of major facilities) and subs 214A(1)(d) which thereby renders those subsections invalid.” 

Helen Kvelde said: “We are happy the court has given some acknowledgement to the democratic right to protest. 

“But these laws to me feel like a distraction. As if both Labor and the Liberal Party are trying to get the population angry with protesters instead of angry against politicians for failing to protect us from climate emergency. 

“I’m not sure what we can do next, but it doesn’t feel right to just let this go. We need to fight for our democratic right to protest peacefully. I wish people would understand that ultimately these laws could affect anyone – anyone the government of the day does not like.” 

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