NSW should think twice before banning ‘globalise the intifada’ after court struck down anti-protest law, legal expert says | New South Wales

A leading constitutional expert says the Minns government should think twice before outright banning the phrase “globalise the intifada” following a landmark finding that could limit attempts to control speech and protests.

New South Wales’s highest court ruled in favor of the Palestine Action Group and Blak Caucus on Thursday, striking down anti-protest legislation that gave police powers to restrict marches, including the anti-Herzog rally in February, following the Bondi beach terror attack.

The full bench of the appeal court, which included chief justice Andrew Bell and justices Julie Ward and Stephen Free, found that discouraging all protest in order to preserve social harmony imposed an impermissible burden on the constitutionally implied right to freedom of political communication.

The idea that the community can and should be protected from political expression by others on the grounds that it could be “upsetting, inflammatory and divisive” was constitutionally unjustified, the justices wrote.

“Suppression of certain types of public debate may be a means to a legitimate end, but it cannot be a legitimate aim in itself,” they wrote.

In January, a parliamentary inquiry in NSW recommended that the phrase “globalise the intifada” should be banned, but that the phrase should only be used to incite hatred, harassment, intimidation or violence. He stopped short of calling for an unqualified ban or ban on phrases like “river to sea”. Chris Minns’ office confirmed on Friday that he still plans to outlaw the phrase “globalising the intifada”, depending on how the ban Queensland imposed earlier this year plays out.

Anne Twomey, a constitutional expert at the University of Sydney, said that if she were the Minns government, “after reading this judgment I would be very, very reluctant to introduce legislation banning certain slogans.”

He said the ruling could also make it easier to challenge Queensland’s ban on the phrases “river to sea” and “globalising the intifada”, even though the ban was in a different jurisdiction.

Twomey said the ruling likely meant any future attempts by the NSW government to block speech or protest for similar reasons, including banning chants “with which this court would disagree”.

“I think this will certainly have ongoing impacts on attempts to ban political slogans, as well as attempts to impose greater regulation of political protests. [the government] “He actually does this to protect himself from violence or to protect society,” he said.

Following Thursday’s decision, Twomey said any slogan ban should be aimed at eliminating risks of violence and not simply because it causes distress or offence.

“If what the government is trying to do is just to stop people from being upset or some vague notion of social coherence, then that’s not going to be enough to justify the law, according to this decision,” Twomey said.

Impact of findings on anti-Herzog protesters

The now-repealed law blocked the use of the state’s permit-style system, which protects protesters from being charged by NSW police while marching.

He was present in parts of the Sydney CBD during a rally against Israeli President Isaac Herzog’s visit in early February; that visit turned violent and triggered a police watchdog investigation into allegations of widespread police misconduct.

The court’s findings raised questions about what this might mean for the 26 protesters who have so far been charged with a variety of crimes, including assaulting police, resisting arrest and using offensive language.

Majed Kheir, one of the lawyers representing the protesters, who celebrated the win as one of the biggest victories for civil liberties in Australian history, said lawyers could now appeal to the police to drop the charges.

“It is open to the court to interpret, but it could mean that the police that night acted outside the scope of their duties and powers because, according to today’s ruling, those powers were unconstitutional,” he said.

“According to me [criminal defence lawyer] Nick Hanna said this out of court and I totally agree; “This is one of the greatest gains for civil rights and civil liberties in Australian history.”

The police may withdraw the charges at their own discretion. In response to a question from Guardian Australia, a NSW police spokesman said police were working on the decision.

Sam Lee, supervising solicitor at Redfern Law Centre, said the question of whether the decision would affect charges was not a simple one. This is because some people do not face immediate criminal charges from which protesters could potentially be protected if Pard were not in effect.

Another complicating factor was that the area was placed under a major events declaration for the duration of Herzog’s visit, giving police greater powers of movement and stop-and-search powers.

“[Withdrawing charges] Lee said it could be based on a case-by-case basis, depending on what powers they are charged with.

Still, Lee said the decision would likely have far-reaching consequences.

“I think this puts the brakes on the Minns government’s ability to use executive authority to minimize people’s rights to protest,” he said.