Greens MLC Sue Higginson considers reform Bill after Sydney Palestine protest ‘prohibited’
Greens MLC Sue Higginson says she is considering changes to the NSW criminal code to remove the court’s power to “ban” public gatherings following the shooting of a pro-Palestinian protest at the Sydney Opera House.
The Court of Appeal Full Panel’s decision to ban the Palestine Action Group’s planned march earlier this month has led to uncertainty about legal protections, including whether protesters can be found in contempt of court.
Ms Higginson said the wording of the Summary Offenses Act, which the court ruled was “slightly misguided”, was never intended to ban a protest but was merely designed to determine whether marchers were afforded some legal protections.
“I am considering introducing a private member’s bill to amend the Summary Offenses Act to change the wording from ‘prohibited’ to simply ‘unauthorised’ so that the interpretation given by the Full Body will no longer apply,” Ms Higginson said.
“I think this is the fastest, clearest and best way.”
Ms Higginson said the Court of Appeal’s decision raised new legal questions about whether protesters who attended a rally unaware of the court outcome could be found in contempt of court and charged by police.
“There is great uncertainty and inoperability in the Form 1 system and this means protesting with permission, without permission and with ban,” he said.
Under NSW law, people attending a planned public assembly are given protection from certain criminal charges, including orders to move and trespass, if a protest is authorized by the NSW Police Commissioner.
Permission is granted through organizers completing Form 1; The police can approve it, meaning an event is allowed, or they can deny it, meaning it could potentially be taken to court where it could be deemed unauthorized.
Ms Higginson said an “unauthorized” protest did not mean it was illegal.
He warned that the uncertainty could lead to “perverse” consequences, including for public safety, if organizers decide not to offer Form 1 at future events; because they are “very concerned that the entire event will be declared banned”.
Failure to guarantee the right to assembly
Sydney Law School criminal law professor Tyrone Kirchengast said concerns about contempt of the Court of Appeal’s decision were something “we haven’t seen before”.
“We have not seen the law, the courts and the police working to limit a parade like this,” he said.
“We have yet to see people charged with contempt of court for resisting an unauthorized public meeting, so it’s potentially clamorous at this point.
“But we’ll have to wait and see.”
Professor Kirchengast said prohibition was “never the right word” in the Summary Offenses Act.
“Protests without permission have never been banned,” he said.
“You can still gather. You may not be able to gather in the area that is the subject of the decision – for example, the Opera House decision – but you can go somewhere else.
“But the protest itself was never banned.
“The language of the ban, of course, is probably a little more descriptive and a little more absolute-sounding, which the police might prefer, then people might not come.”
Professor Kirchengast said that due to the lack of constitutional freedom of assembly, public assemblies and protests “relyed on a significant degree of police restriction and the courts exercised common sense”.
“There’s a gap there that’s being filled by these kinds of semi-criminal, semi-administrative processes,” he said.
The regime “demonstrates the inability of the people of NSW to protest at all relevant times.
“They cannot protest spontaneously.
“Public meetings must be planned, advertised and then subject to a discretionary approval process by the police and even the courts.”
The expansion of new police powers was ruled unconstitutional after a High Court challenge by Palestine Action group organizer Joshua Lees.
The NSW government has argued the laws are necessary to crack down on hate speech and are aimed at stopping protests outside places of worship.
Noting the court’s decision on these laws, Professor Kirchengast said the police and the state were “reluctant to give any part of this power back to the people.”
Attorney General Michael Daley’s office has been contacted for comment.
