Kvelde v State of New South Wales - [2023] NSWSC 1560

Supreme Court

New South Wales

Medium Neutral Citation: Kvelde v State of New South Wales [2023] NSWSC 1560
Hearing dates: 10 May 2023
Date of orders: 13 December 2023
Decision date: 13 December 2023
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.
(2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.
(3) The Summons filed 12 October 2022 is otherwise dismissed.
(4) Each party should pay their own costs.
(5) Liberty is granted to the parties to apply by writing to the Associate to Justice Walton within 21 days of these orders to vary the terms of the declarations and orders.
(6) If possible, any exercise of the liberty in order (5) be dealt with on the papers. But in the event that either party wishes to have a hearing on the terms of the declarations and orders or question of costs, the parties should bring in Short Minutes of Order with an agreed programme for the disposition of the relevant issues.

Catchwords:
CONSTITUTIONAL LAW — Standing – whether plaintiffs have standing to challenge the validity of s 214A of the Crimes Act 1900 (NSW) – the plaintiffs’ have standing.
CONSTITUTIONAL LAW — implied freedom of political communication – construction of impugned provisions – the nature of the burden - whether the implied freedom is burdened – whether there is an incremental effect by the impugned law on the implied freedom – whether burden inconsequential – burden found -– structured proportionality analysis –impugned provisions are legitimate in their purpose – suitable for purpose – lack of necessity – inadequacy in its balance - subsection 214A(1)(c) is invalid in part – standard use words as to proportionality not reasonable – subsection 214A(1)(d) is invalid.
CRIMINAL LAW – protesters – validity of legislation – freedom of political communication – Crimes Act 1900 (NSW) - Crimes Amendment (Major Facilities) Regulation 2022 (NSW) – subsection 214A(1)(c) invalid in part – subsection 214A(1)(d) is invalid.
ADMINISTRATIVE LAW — Validity of regulation – Roads Act1993 (NSW) - Roads and Crimes Legislation Amendment Act 2022 (NSW) - regulation is valid.

Legislation Cited:
Beverage Container Act 1975 (SA)
Beverage Container Act Amendment Act 1986 (SA)
Crimes Act 1900 (NSW), ss 195, 211, 213, 214A, 217, 428B, 578C(2), (7)
Crimes Amendment (Major Facilities) Regulation 2022 (NSW)
Crimes Regulation 2000 (NSW)
Criminal Appeal Act1912 (NSW), s 5
Criminal Code (Tas), ss 122, 123
Electoral Funding Act 2018 (NSW), ss 29, 35
Forest Management Act 2013 (Tas)
Human Rights (Sexual Conduct) Act 1994 (Cth)
Interpretation Act 1987 (NSW), ss 23, 24, 31, 42
Judiciary Act 1903 (Cth), ss 39, 78A, 78B
Police Offences Act 1890 (Vic), s 6
Protection of the Environment Operations Act 1997 (NSW), s 144
Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 2
Roads Act 1993 (NSW), ss 58, 59, 60
Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW), cl 48A
Roads and Crimes Legislation Amendment Act 2022 (NSW)
Roads Regulation 2018 (NSW)
Summary Offences Act 1988 (NSW), ss 8 23, 24
The Constitution, ss 24, 68, 76(i), 77(iii), 128
Transport Administration Act 1988 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 1.22, 1.23, 1.24
Workplaces (Protection from Protesters) Act 2014 (Tas)

Cases Cited:
Al Mana Lifestyle Trading L.L.C. & OthersvUnited Fidelity Insurance Company PSC and Others [2023] EWCA Civ 61; [2023] All ER (D) 14 (Feb)
Al-Kateb v Godwin (2004) 219 CLR; [2004] HCA 37
Athavle v State of New South Wales (2021) 290 FCR 406; [2021] FCA 1075
Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3
Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13
Auburn Municipal Council v Ivanoff (1964) 10 LGRA 258
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53
Beatty v Gillbanks (1882) 9 QBD 308; [1881-5] All ER Rep 559
Boyce v Paddington Borough Council [1903] 1 Ch 109
Breen v Sneddon (1961) 106 CLR 406; [1961] HCA 67
Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43
Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 22; (2022) 110 NSWLR 145
Cam & Sons v Chief Secretary (1951) 84 CLR 442; [1951] HCA 59
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1
CB v Director of Public Prosecutions NSW (2013) A Crim R 522; [2013] NSWSC 618
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41
City of Brunswick v Stewart (1941) 65 CLR 88; [1941] HCA 7
Clements v Bull (1953) 88 CLR 572; [1953] HCA 61
Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19
Commission of Police v Rintoul [2003] NSWSC 662
Commissioner of Police v Allen (1984) 14 A Crim R
Commissioner of Police v Jackson [2015] NSWSC 96
Commissioner of Police v Vranjkovic (Unreported, NSWSC, 28 October 1980)
Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579; [1921] HCA 44
Cordingley v Cheeseborough (1862) 4 De GF & J 379; (1862) 45 ER 1230
Croome v State of Tasmania (1997) 191 CLR 119; [1997] HCA 5
Crowe v Graham (1968) 121 CLR 375; [1968] HCA 6
Director of Public Prosecutions v Belani (2005) 64 NSWLR 319; [2005] NSWSC 1013
Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; [1990] HCA 5
Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63
Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149
Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174
Environment Protection Authority v N (1992) 26 NSWLR 352; (1992) 59 A Crim R 408
Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31
Fitzgerald v Montoya (1989) 16 NSWLR 164; (1989) 40 A Crim R 105
Fletcher v Harris [2005] ACTSC 27
Gas Fuel Corporation (Vic) v Comptroller of Stamps [1964] VR 617
Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11
Haywood v Mumford (1908) 7 CLR 133; [1908] HCA 62
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
Henshaw v Mark (1997) 95 A Crim R 115
Hubbard v Pitt [1976] QB 142
Hussein v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2006] FCA 286
Jobling v Blacktown Municipal Council (1969) 17 LGRA 92; [1969] 1 NSWLR 129
Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
Lendlease Building Contractors Pty Limited v Australian Budling and Constructions Commissioner (No 2) (2022) 314 IR 378; [2022] FCA 192
Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31
LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490; [2021] HCA 18
Lygon Nominees Pty Ltd v Commissioner of State Revenue (2007) 23 VR 474; [2007] VSCA 140
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28
Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368
McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34
McMillan v Barclay Curle & Co Ltd (1899) 2 F(Ct of Sess) 91
Melbourne Corp v Barry (1922) 31 CLR 174; [1922] HCA 56
Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53
Meriton Units Pty Ltd v Rule (Unreported, NSWSC, Needham J, 18 April 1983 at 7)
Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1; [2006] HCA 52
Nguyen v The Director of Public Prosecutions (NSW) [2023] NSWCCA 42
Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9
NSW Commissioner of Police v Bainbridge [2007] NSWSC 1015; (2007) 175 A Crim R 226
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23
Pharmaceutical Society of Great Britain v Dickson [1970] AC 403; [1968] 2 All ER 686
Purdon v Dittmar [1972] 1 NSWLR 94
R v A2 (2019) 269 CLR 507; [2019] HCA 35
R v Edwards [1975] QB 27
R v Goreng-Goreng (2008) 220 FLR 21; [2008] ACTSC 74
R v Uddin [2017] EWCA Crim 1072; [2018] 1 All ER 1073
Re Judiciary and Navigation Acts (1921) 29 CLR 257; [1921] HCA 20
Robinson v Western Australia (1977) 138 CLR 283; [1977] HCA 46
Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45
Ruddick v Commonwealth (2020) 96 ALJR 367; [2022] HCA 9
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
Schubert v Lee (1946) 71 CLR 589; [1946] HCA 28
Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4
South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3
South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39
Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63; [2003] FCAFC 237
Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28
Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35
The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
Tunney v Keehn; Ex parteKeehn [1977] Qd R 6
Tyne Keelmen v Davison (1864) 16 CBNS 612
Unions New South Wales v New South Wales (2023) 407 ALJR 277; [2023] HCA 4
Unions New South Wales v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58
Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19
Watson v Trenerry (1998) 122 NTR 1; (1998) 100 A Crim R 408
Will v Brighton (2020) 104 NSWLR 170: [2020] NSWCA 335
Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56
Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2

Texts Cited:
Delegated Legislation in Australia (2017)
Introduction to the Study of the Law of the Constitution, 8th ed (1915)
Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) 778
New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 30 March 2022
Roads and Crimes Legislation Amendment Bill 2022 (NSW)
Shorter Oxford English Dictionary (6th ed.) Shorter Oxford University Press

Category: Principal judgment
Parties: Helen Kvelde (First Plaintiff)
Dominique Jacobs (Second Plaintiff)
State of New South Wales (First Defendant)
Representation:
Counsel:
S Free SC (Plaintiffs)
F Graham (Plaintiffs)
E Jones (Plaintiffs)
D Farinha (Plaintiffs)

M G Sexton SC (Defendant)
M O Pulsford (Defendant)
Solicitors:
Environmental Defenders Office Ltd (Plaintiffs)
Crown Solicitor’s Office (Defendant)

File Number(s): 2022/304510

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was passed in the NSW Legislative Assembly. The Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 less than 30 hours after the Bill was introduced for the first time in NSW Parliament. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Section 214A(1) provides as follows:

214A Damage or disruption to major facility
(1)    A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct—
(a)    causes damage to the major facility, or
(b)    seriously disrupts or obstructs persons attempting to use the major facility, or
(c)    causes the major facility, or part of the major facility, to be closed, or
(d)    causes persons attempting to use the major facility to be redirected.

Maximum penalty—200 penalty units or imprisonment for 2 years, or both.

The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) amended cl 48A to its present form to include the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act.

On 12 October 2022, Ms Helen Kvelde and Ms Dominque Jacobs (the plaintiffs), sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) are invalid. The State of New South Wales (the State) opposed the relief sought.

The plaintiffs both had a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports about environmental and climate change issues. Unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They have, therefore, an interest in knowing whether they are required to observe the law. The Court held that the plaintiffs do not merely have strong political beliefs but rather also have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions.

Croome v State of Tasmania (1997) 191 CLR 119; [1997] HCA 5; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 followed.

The principal issues for the Court were:

Whether s 214A of the Crimes Act is invalid because it infringes upon the implied freedom of political communication (“the implied freedom”) and thus, is beyond the power of the Parliament of New South Wales; and
Whether cl 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”).

The Court held:

As to s 214A of the Crimes Act

Subsection 214A(1)(c), so far as the provision concerns the closure of part of a major facility and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication.
Environmental protests do constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends. The nature of the burden is demonstrated by the impugned provisions directly targeting protest activities and is not eliminated or reduced to the point of insignificance by subss 214A(4), (5) or (6).
Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 applied.
The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. The impugned provisions in this case were found to restrict the implied freedom beyond valid existing laws, thereby constituting an incremental burden on the ability of persons to engage in political communications, such as environmental issues, which are capable of having a bearing on electoral choice.
Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35; Schubert v Lee (1946) 71 CLR 589; Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23; Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 applied; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 followed.
The State contended the implied freedom in this matter was “slight” and “so slight as to be inconsequential.” The submission conveyed that in those circumstances the first question should be answered in the negative. Having regard to the relevant authorities that proposition needs to be approached with considerable caution. The correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms.
Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 discussed; Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 applied.
Hence, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom in their terms, operation, and effect and must be justified.
Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35; Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43; Unions New South Wales v New South Wales (2023) 407 ALJR 277; [2023] HCA 4; Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23; McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 followed.
The purpose of the impugned provisions is legitimate in its purpose.
Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43; Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 followed.
The impugned provisions are capable of preventing serious disruption or obstruction and therefore, the impugned provisions were found to have a rational connection to the purpose of deterring disruption and therefore suitable for the legitimate purpose. It is unclear on the authorities whether the test of capability might properly be conditioned by a requirement that there needs to exist a real, substantial, or direct connection to the purpose. However, the Court held that the test is no more demanding than that the law is simply capable of realising the purpose of the law.
Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19 applied; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 discussed.
The impugned provisions have failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) advanced by the plaintiffs may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect.
Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 applied; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 considered; [1990] HCA 1. Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19
The effect of the impugned provisions on the implied freedom significant outweighs benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves and hence, s 214A(1) is not adequate in its balance.
Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11; McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23; Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 22; (2022) 110 NSWLR 145 LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490; [2021] HCA 18 followed.

As to cl 48A(1) of the Roads Regulation

The challenge to the validity of the Regulation (cl 48A(1)(a) and (f) must fail. Clause 48A(1)(a) does not conflate two concepts which the legislation intended to be separate. Ultimately, cl 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness.
The exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.
Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3; R v Goreng-Goreng (2008) 220 FLR 21; [2008] ACTSC 74; Athavle v State of New South Wales (2021) 290 FCR 406; [2021] FCA 1075; Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 followed; Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 discussed.

JUDGMENT

INTRODUCTION

By a Summons filed 12 October 2022, the plaintiffs, Ms Helen Kvelde and Ms Dominque Jacobs, sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) (together, the “impugned provisions”) are invalid. The plaintiffs submitted that:

Section 214A of the Crimes Act is invalid because it infringes the implied freedom of political communication (“the implied freedom”) and is thus beyond the power of the Parliament of New South Wales; and

Clause 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”).

The defendant, the State of New South Wales (“the State”), opposed the relief. Before getting to the merits, the State submitted that the plaintiffs do not have standing to challenge the validity of either provision because the question is hypothetical and not justiciable. The question central to whether the plaintiffs have standing was whether there is a “matter” before the Court. This needs to be resolved first, after a review of the evidence. Only if it is resolved in the plaintiffs’ favour should the Court proceed to the merits of the plaintiffs’ challenge to the validity of s 214A of the Crimes Act.
It must also be stated at the outset that it is not part of this Court’s function to pass judgment on the political wisdom of the impugned provisions: Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 439 [58]; Nicholas v The Queen (1998) 193 CLR 173 at 197 [37] (Brennan CJ). The role of the Court is to determine questions of law. For the reasons below, the plaintiffs have standing to bring the challenges to both s 214A of the Crimes Act and cl 48A(1) of the Roads Regulation. Section 214A of the Crimes Act in part infringes the implied freedom of political communication and, to that extent, exceeds the legislative power of the Parliament of New South Wales. Clause 48A(1) of the Roads Regulation is not invalid because it does not exceed the regulation-making power contained in the Roads Act.

NOTICE OF CONSTITUTIONAL MATTER

At the hearing, I was satisfied that the plaintiffs had filed a Notice of a Constitutional Matter as required by r 1.22(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). This Notice was served to the Attorneys-General of the Commonwealth, the States (save for the State of New South Wales), the Australian Capital Territory and the Northern Territory as required by s 78B(1) of the Judiciary Act and r 1.23(1) of the UCPR.
An affidavit of service of Olivia Freeman, affirmed 24 October 2023, was filed attesting to the fact that the Notice was served on 13 October 2022 as required by r 1.24 of the UCPR. At the hearing, I was satisfied that a reasonable time has elapsed since the giving of the Notice to the Attorneys-General for the question of intervention in the proceedings or removal of the cause to the High Court. No Attorneys-General exercised their right under s 78A(1) of the Judiciary Act to intervene or their right under s 40(1) of that Act to have the proceedings removed to the High Court.

THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION

The implied freedom is essential to the maintenance of the system of representative and responsible government for which the Commonwealth Constitution provides. The implied freedom protects “the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth”: Brown v Tasmania (2017) 261 CLR 328 (“Brown”) at [88] (Kiefel CJ, Bell and Keane JJ). The reason for the implication lies in the “protection of political communication on which depends the efficacy of electoral accountability for the exercise of legislative and executive power with the constitutionally prescribed national system of representative and responsible government”: Brown at [162] (Gageler J (as his Honour then was)).
The freedom has been recognised to be "of such importance to representative government that any effective statutory burden upon it must be justified”: LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490; [2021] HCA 18 (“LibertyWorks”) at [45] (Kiefel CJ, Keane and Gleeson JJ).
The High Court has adopted a three-part test to establish whether a law contravenes the implied freedom: McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (“McCloy”) at [1]-[2]; Brown at [104] (Kiefel CJ, Bell and Keane JJ), [155]-[156] (Gaegler J), [277] (Nettle J) and [481] (Edelman J). The test was re-stated in Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 (“Clubb”) as follows at [5]:

Does the law effectively burden the implied freedom in its terms, operation or effect? (“the first question”).

If “yes” to question one, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? (“the second question”).

If “yes” to question two, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? (“the third question”).^[1]

THE LEGISLATIVE AND REGULATORY REGIME

1. This test was applied by Kirk JA (with whom Bell CJ and Leeming JA agreed) in Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 22 at [16] (“Burton”). The second and third questions set out in McCloy by French CJ, Kiefel, Bell and Keane JJ at [2] and Gordon at [306] were reformulated in Brown by Kiefel CJ, Bell and Keane JJ at [104] and approved byGageler at [155] – [156] and Gordon J at [481] (“McCloy/Brown analysis”).

The Crimes Act Regime

On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was introduced in the NSW Legislative Assembly and was declared an “urgent bill”. On that same day, it was read three times and passed the Legislative Assembly. The very next day (on 31 March 2022), it was introduced in the NSW Legislative Council. The following day (on 1 April 2022), the Bill passed the Legislative Council with amendments and was returned to the Legislative Assembly. The Legislative Assembly agreed to the amendments and the Bill received the Royal Assent on that same day. As s 2 provides that the Act commences on the date of assent, the Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 (Interpretation Act 1987 (NSW) ss 23(1)(b) and 24 (“Interpretation Act”)), less than 30 hours after the Bill was introduced for the first time in NSW Parliament.
The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Relevantly, s 214A of the Crimes Act provides as follows:

214A Damage or disruption to major facility
(1)    A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct—
(a)    causes damage to the major facility, or
(b)    seriously disrupts or obstructs persons attempting to use the major facility, or
(c)    causes the major facility, or part of the major facility, to be closed, or
(d)    causes persons attempting to use the major facility to be redirected.
Maximum penalty—200 penalty units or imprisonment for 2 years, or both.

(2)    It is a defence to the prosecution of an offence against this section if the person charged proves that the person had a reasonable excuse for the conduct.
(3)    A person does not commit an offence under this section if the conduct forms part of the following—
(a)    industrial action,
(b)    an industrial dispute
(c)   an industrial campaign.

(4)    A person does not commit an offence under this section if the conduct occurs—
(a)    at the workplace at which the person works, or
(b)    at a workplace owned, occupied, operated or used by an employer of the person.

(5)    This section does not apply to the extent that it prohibits conduct in relation to—
(a)    Parliament House, or
(b)    an office of a member of parliament.

(6)    A person does not commit an offence under this section for anything done or omitted to be done in accordance with the consent or authority of—
(a)    the NSW Police Force, or
(b)    another public authority, or
(c)    for a privately owned major facility—the owner or operator of the facility.

(7)    In this section—
major facility means the following, whether publicly or privately owned—
(a)    a railway station or other public transport facility prescribed by the regulations,
(b)    a private port within the meaning of the Ports and Maritime Administration Act 1995, or another port prescribed by the regulations,
(c)    an infrastructure facility, including a facility providing water, sewerage, energy, manufacturing, distribution or other services to the public, prescribed by the regulations.

Within a few days of the Amendment Act, and thereby s 214A of the Crimes Act, commencing, the Crimes Amendment (Major Facilities) Regulation 2022 (NSW) came into effect. This Regulation inserted a new cl 4A and Sch 1 into the Crimes Regulation 2020 (NSW) (“Crimes Regulation”) to prescribe the facilities falling under the definition of “major facilities” in s 214A of the Crimes Act. It is unnecessary to set out the entirety of cl 4A and Sch 1. It is suffice to state that the “major facilities” prescribed for the purposes of s 214A(7) of the Crimes Act include:

41 railway and metro stations;

2 ferry terminals (as “other public transport facilities”);

2 passenger or cruise terminals (as “ports”); and

18 “infrastructure facilities”, including power stations, airports, steelworks, oil terminals, an aluminium smelter, a logistics centre, the State Health Emergency Operations Centre, the Sydney Desalination Plant and the Woolworths Distribution Centre.

It is necessary to emphasise that the plaintiffs’ challenge is to s 214A of the Crimes Act. It is not that cl 4A and Sch 1 of the Crimes Regulation is beyond the scope of the regulation-making power in s 582, read with s 214A(7), of the Crimes Act. Thus, it can be appreciated that, whilst cl 4A and Sch 1 of the Crimes Regulation gives a flavour or example of the kind of facilities that can be prescribed as a “major facility” for the purposes of s 214A of the Crimes Act, it is not an exhaustive list of possible major facilities. The Governor can amend the Crimes Regulation to add or remove facilities prescribed for the purposes of s 214A of the Crimes Act.
It may be observed that the ambit of what the Governor can prescribe as a “major facility” is very broad. It can include any railway station, port, manufacturing plant or distribution centre. It need not necessarily be a publicly owned facility. Indeed, the provisions of subs (7)(c) can include private facilities, which is evident from the inclusion of the Woolworths Distribution Centre.

The Roads Act Regime

The Amendment Act also made amendments to s 144G of the Roads Act. Section 144G, as amended, provides as follows:

144G Damage, disruption or obstruction of Sydney Harbour Bridge and other major bridges, tunnels and roads
(1)    A person must not enter, remain on, climb, jump from or otherwise trespass on any part of the Sydney Harbour Bridge or any other major bridge, tunnel or road if that conduct—
(a)    causes damage to the bridge, tunnel or road, or
(b)    seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road.
(c)    (Repealed)
Maximum penalty—200 penalty units or imprisonment for 2 years, or both.

(2)    Without limiting subsection (1) (b), a person seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road if, as a result of the person’s conduct, the bridge, tunnel or road (or any part of the bridge, tunnel or road) is closed or vehicles or pedestrians are redirected.
(3)    Nothing in this section prohibits conduct in accordance with the consent or authority of TfNSW, the NSW Police Force or other public authority.
(4)    It is a defence to the prosecution of an offence against this section if the person charged proves that the person had a reasonable excuse for the conduct concerned.
(4A)    A person does not commit an offence under this section if the conduct occurs—
(a)    at the workplace at which the person works, or
(b)    at a workplace owned, occupied, operated or used by an employer of the person.

(4B)    This section does not apply to the extent that it prohibits conduct in relation to—
(a)    Parliament House, or
(b)    an office of a member of parliament.

(5)    For the purposes of subsection (4) but without limiting that subsection, a person has a reasonable excuse if the conduct arose from a mechanical fault or breakdown of a motor vehicle.
(5A)    A person does not commit an offence under this section if the conduct forms part of the following—
(a)    industrial action,
(b)    an industrial dispute,
(c)    an industrial campaign.

(6) In this section—
major bridge, tunnel or road means a bridge, tunnel or road prescribed by the regulations for the purposes of this section.
vehicle includes a train.

Despite s 144G of the Roads Act having come into force on 3 December 2018 (Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 2), the regulations did not prescribe any bridges and tunnels within the definition of “major bridge or tunnel” until 24 March 2022. The consequence was that only the Sydney Harbour Bridge was covered by that statutory provision.
On 24 March 2022, the Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) inserted cl 48A of the Roads Regulation to provide that “any bridge or tunnel within the Greater Sydney Region” is prescribed for the purposes of s 144G.
On 1 April 2022, (the day that the Amendment Act passed the Parliament and commenced), the Roads Amendment (Major Bridges and Tunnels) Regulation (No 2) 2022 (NSW) amended cl 48A of the Roads Regulation to incorporate:

(a)    a bridge or tunnel in—
(i)    the Greater Sydney Region, or
(ii)   the City of Newcastle, or
(iii)    the City of Wollongong,

(b)    a bridge or tunnel that joins—
(i)    a main road, or
(ii)    a highway, or
(iii)    a freeway

On 5 April 2022, the Roads Amendment (Major Roads) Regulation 2022 (NSW) further amended cl 48A to its present form. Clause 48A of the Roads Regulation provides as follows:

48A Major bridge, tunnel or road
(1) For the Act, section 144G, definition of major bridge, tunnel or road, the following are prescribed for the purposes of that section—
(a) a main road,
(b) a highway,
(c) a freeway,
(d) a tollway,
(e) a bridge or tunnel that joins a road referred to in paragraphs (a)–(d),
(f) a bridge or tunnel in—
(i) the Greater Sydney Region, or
(ii) the City of Newcastle, or
(iii) the City of Wollongong.

Example—
the Spit Bridge across Middle Harbour

(2) In this clause—
Greater Sydney Region has the same meaning as in the Greater Sydney Commission Act 2015, as in force on the commencement of this clause.

One aspect of the challenge made by the plaintiffs is that cl 48A(1)(a)-(d) of the Road Regulation utilises the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act. The relevant provisions of the Roads Act are as follows:

46 Main roads
The Minister may, by order published in the Gazette, declare to be a main road—
(a)    any public road, or
(b)    any other road that passes through public open space and joins a main road, highway, freeway, tollway, transitway or controlled access road.
47 Highways
The Minister may, by order published in the Gazette, declare to be a highway any main road that is a principal avenue of road communication within the State.
48 Freeways
(1) The Minister may, by order published in the Gazette, declare to be a freeway any main road that is designed to facilitate the movement of motor traffic.
(2)    On the publication in the Gazette of an order declaring a main road to be a freeway, TfNSW becomes the owner of the land on which the freeway is situated.
…
52 Tollways
(1) The Minister may, by order published in the Gazette, declare to be a tollway—
(a)    any road that is owned by TfNSW and that is designed to facilitate the movement of motor traffic, or
(b)    any road proposed to be constructed on land owned or to be owned by TfNSW.

(2) A public road that is declared to be a tollway ceases to be a public road by virtue of the declaration.
(3) A tollway is not a road or road related area within the meaning of section 4 (1) of the Road Transport Act 2013 for the purposes of any Act or law, or any provision of an Act or law, prescribed by the regulations for the purposes of this section.

Section 54(1) of the Roads Act provides that the Minister may not make an order under Pt 5 Div 1 of the Roads Act “otherwise than on the recommendation of” Transport for New South Wales (“TfNSW”), which is a body constituted under the Transport Administration Act 1988 (NSW). The power of TfNSW to make a recommendation to the Minister is subject to the provisions of Pt 5 Div 2 of the Roads Act. It is unnecessary to elaborate in detail on the provisions of this Division. It is sufficient to summarise the process as follows:

TfNSW needs to give written notice of the proposed action to each roads authority for the road concerned and a reasonable opportunity for them to make submissions with respect to the proposed action (s 58(1));

TfNSW “must” consider the submissions made by any roads authority; whether the main road or proposed main road is or may become a major route for long-distance traffic; the amount of money available or likely to become available for the construction and maintenance of the main road or proposed main road; and other relevant factors (s 59);

If TfNSW decides to proceed with the action, TfNSW “must” notify any roads authority from which it has received a submission objecting to the taking of the proposed action (s 58(2)); and

Any roads authority aggrieved by TfNSW’s decision may appeal to the Minister and, after hearing of the appeal, the Minister may make, amend or revoke an order (or refuse to do so) (s 60).

Context of the Amendment Act and The Implied Freedom

The Long Title to the Amendment Act is “an Act to amend the [Roads Act] and the [Crimes Act] to create offences for certain behaviour that causes damages or disruption to major roads or major facilities…”
The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads and, as mentioned, amended the Crimes Act by inserting Pt 4AF. The effect of this change was to create an equivalent but not identical offence to that found in s 144G, albeit in relation to major facilities.
The Second Reading Speech was introduced into these proceedings through the evidence of the State without objection. In fact, both parties placed reliance on the Second Reading Speech in seeking and resisting the declarations, particularly with respect to the construction of s 214A (to the extent that issue was actually addressed by the parties), the question of whether there was an effective burden upon the implied freedom and whether there was a justification for any burden imposed. In my view, the Second Reading Speech is available for the consideration of these issues and the context of the Amendment Act to which I will now turn pursuant to s 34(2)(f) of the Interpretation Act.
In introducing the Bill, the NSW Attorney-General referred to recent protests at various locations and, in particular, the Spit Bridge and Port Botany which caused major disruptions to the New South Wales transport network. The Attorney-General stated:

“Members in this House would be aware of recent events staged at various locations where illegal protesters participated in activities that caused major disruptions to the New South Wales transport network. Two incidents in particular, in which men suspended themselves from structures in order to block access to Port Botany, resulted in major traffic delays around Port Botany and the Sydney Airport area, with road closures and traffic diversions. These activities followed multiple episodes of disruption on the Spit Bridge, which halted all city-bound travel on each occasion. …”^[2]

2. NSW Legislative Assembly Parliamentary Debates (Hansard), 30 March 2022, 8938.

The Attorney-General described the protests as unnecessarily endangering the safety of protesters and emergency services personnel and made reference to two particular incidents at Port Botany in which persons suspended themselves from structures in order to block access to Port Botany:

“Media reports indicate that, in one of the Port Botany incidents, emergency services were required to abseil to the protester to end the disruption. Not only did the protester’s actions cause significant traffic delays and economic loss; it also unnecessarily endangered the safety of the protester and emergency services personnel. …”^[3]
3. Ibid.

The State called evidence regarding the protests at the Spit Bridge by Fireproof Australia protesters on 22 February and 14 March 2022 and Blockade Australia protesters at Port Botany on 22 and 26 March 2022. I will return to that evidence below.
The Attorney-General accepted that there were existing offences that captured conduct of the kind he had mentioned but that penalties were insufficient deterrents. The Attorney-General stated:

“Section 8 of the Summary Offences Act, which deals with offences of climbing on or jumping from buildings or other structures without reasonable excuse, carries a $1,000 fine or three months' imprisonment. It will not cover all circumstances where there is a blockade or blockage of the free passage of pedestrians and vehicles and is limited in the physical activity that it covers. Rules 125 and 236 of the Road Rules 2014, which state that drivers or pedestrians are not to unreasonably obstruct the path of any other driver or pedestrian, carry maximum penalties of $2,200. I will come to section 144G of the Roads Act 1993 later. Existing offences related to the obstruction of traffic under the Summary Offences Act 1988 and the Road Rules 2014 carry maximum fines of $440 and $2,200, respectively.
Higher penalties are available under section 144G of the Roads Act 1993, which makes it an offence for a person to enter, remain on, climb, jump from or otherwise trespass on the Sydney Harbour Bridge, or any other major bridge or tunnel prescribed by the regulations, if that conduct causes damage to the bridge or tunnel or seriously disrupts or obstructs vehicles or pedestrians. The offence is punishable by a fine of up to $22,000, two years' imprisonment or both. … bridge or tunnel in Greater Sydney is now captured by the offence; however, the offence still does not apply to thoroughfares or places other than bridges or tunnels. To address these shortcomings, the Roads and Crimes Legislation Amendment Bill 2022 amends the existing offence under section 144G of the Roads Act to ensure that the offence can be applied to major roads prescribed by the regulations alongside bridges and tunnels.
The Bill also amends the Crimes Act 1900 to create an equivalent offence that will ensure that conduct which causes damage or disruption to major facilities other than major bridges, tunnels and roads is also prohibited. The bill is not about interfering with legitimate forms of protest.”^[4]
4. Ibid, 8939.

The Attorney-General further mentioned that existing laws were not a sufficient deterrent as follows:

“Protests such as those that occurred in Port Botany were not authorised under the Summary Offences Act 1988. … While there are existing offences that capture such conduct, the actions of these protesters make it clear that the penalties available for these offences are not sufficient to deter illegal protests that disrupt the lives of the people of New South Wales and that the threshold to meet the more serious offences is not being met. There are comparable offences available already, including section 6 of the Summary Offences Act, without reasonable excuse from wilfully preventing, in any matter, the free passage of a person, vehicle or vessel in a public place. That offence only carries a maximum penalty of a fine of $440.”^[5]
5. Ibid, 8938.

The Attorney-General recognised that the recent protests were directed to “the enormous environmental threat posed by climate change.”^[6] He referred to a pledge by the New South Wales Government at the United Nations Climate Change Conference regarding electric vehicles and policies by the Government to reduce the State’ s emissions.
6. Ibid, 8939.
The Attorney-General indicated that the Bill was not seeking to impose a general prohibition on protests and was not seeking to criminalise conduct that was already lawful.^[7] His statements in that respect were as follows:

“The Bill in no way seeks to impose a general prohibition on protests. The Government supports the rights of all individuals to participate in lawful protest. Freedom of assembly and speech have long been recognised by Australian courts as important rights that are integral to a democratic system of government; however, the right to protest must be weighed against the right of other members of the public to move freely and not be obstructed in public places. There are plenty of other ways for individuals to express their strongly held views, and the Government will not stand by as the few seek to disrupt and dispossess the rights of many. Part 4 of the Summary Offences Act 1988, for example, contains a scheme to facilitate lawful protests under which the commissioner of police, the Supreme Court or the District Court can authorise a protest. The scheme encourages cooperation between police and protest organisers and seeks to strike a balance between the freedom of assembly and speech of protesters, on the one hand, and the rights of other members of the public not to have their lawful activity impeded, on the other hand. ^[8]
…
In response to that, there are plenty of ways that the Bill leaves for people to engage in peaceful assembly and the peaceful right of protest. But in all cases of rights, it is a question of balancing these rights against the rights of the vast majority of citizens …It really is not a case of criminalising matters that are already lawful, but rather making sure that the criminal law and the roads legislation have effective deterrents to prevent the sorts of protests that so grievously interrupt the lives of many and cause economic and community chaos.
…
The Bill will ensure that conduct which causes damage or serious disruptions on major bridges, tunnels, roads and major facilities can be appropriately deterred and punished. ...” ^[9]
7. Ibid, 8940.
8. Ibid, 8938.
9. Ibid, 8940.

The Attorney-General’s statement in the Second Reading Speech as to the absence of consequences arising from the Amendment Act for the right to public assembly, protest or demonstrations requires closer examination.
First, the Attorney-General's reference to a “right to protest” and “the peaceful right of protest” is undoubtedly a reference to a common law right to freedom of speech or peaceful assembly.
The substance of the Attorney-General’s observation as to such a right may be accepted in law either on the basis of the existence of a common law right to freedom of speech or peaceful public assembly (Clubb at [8] (Kiefel, Bell and Keane JJ))^[10] or upon the basis that protests or demonstrations are simply not prohibited under the common law, as contemplated in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 564 (“Lange”)^[11] and incorporated within the principle of legality. The principle of legality protects freedom of speech, including political speech, which by extension incorporates protests.^[12]
10. See also South Australia v Totani [2010] HCA 39 (“Totani”) at [30] (French CJ); Commission of Police v Rintoul [2003] NSWSC 662 at [5] and [6] (Simpson J); Commissioner of Police v Allen (1984) 14 A Crim R 244 at 245 (Hunt J); Commissioner of Police v Jackson [2015] NSWSC 96 at [90] (Schmidt J); NSW Commissioner of Police v Bainbridge [2007] NSWSC 1015 at [3]-[4] (Adams J); Commissioner of Police v Vranjkovic (Unreported), NSWSC, 28 11 80 at [7] (Lee J) (“Vranjkovic”)).
11. “Under a legal system based on the common law, “everybody is free to do anything, subject only to the provisions of the law”, so that one proceeds “upon an assumption of freedom of speech” and turns to the law “to discover the established exceptions to it””: Lange at 564, citing Attorney-General v Guardian Newspapers [No 2] [1990] 1 AC 109 at 283.
12. “Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases”: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 (Gleeson CJ).
The operation of Pt 4 of the Summary Offences Act 1988(NSW) (“Summary Offences Act”) as mentioned by the Attorney-General, may, in some respects, be beside the point so far as a burden upon the implied freedom is concerned. The common law tradition is against the idea that freedom of political communication lies in the gift of the government, as the plaintiffs put it, “after the dismantling of laws for licensing the press in the 17^th Century.”^[13]
13. See Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [31] (Gleeson CJ and Crennan J); LibertyWorks at [96] (Gageler J (as his Honour then was)). It should be noted, however, that the operation of Pt 4 of the Summary Offences Act does, to a degree, ameliorate any burden on the implied freedom imposed by s 214A (as discussed later in this judgment).
Nonetheless, the right to protest at common law, or the absence of prohibitions against protests at common law, do not extend to conduct that consists of violence.^[14]
14. Vranjkovic at [7] (Lee J).
Further, any common law right to protest or demonstrate may be abrogated by statute: Farm Transparency International Ltd v New South Wales (2022) 403 ALR 1; [2022] HCA 23 (“Farm Transparency”) at [140] (Gageler J (as his Honour then was)).
The assessment of whether the prohibitions in s 214A effectively burdened the implied freedom must be assessed by reference to the restraints which the law, including the common law, equity and statute law, already imposed upon the person’s ability to engage in the conduct, provided the law, such as it is, is already valid. These existing laws form a constitutionally valid baseline: Ruddick v Commonwealth (2022) 96 ALJR 367; [2022] HCA 9 (“Ruddick”) at [155] (Gordon, Edelman and Gleeson JJ); Brown at [109] (Kiefel CJ, Bell and Keane JJ), [181] and [188] (Gageler J (as his Honour then was)), [259] (Nettle J, [357], [393], [411] and [420] (Gordon J) and [557]-[558] (Edelman J).
The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a political communication which the law may already validly restrict: Farm Transparency at [37]. Thus, any law that imposes a prohibition on political communication can only incrementally burden the implied freedom in so far as it extends beyond existing prohibitions. The High Court has consistently denied that the implied freedom, as a limitation on legislative power, prevents a Parliament from regulating political communications (including public assemblies) that a person is not free to make. As stated by Edelman J in Clubb (at [223]): “To recognise otherwise would transmogrify the constitutional protection of a freedom into a constitutional right.”
An incremental burden must be justified: Farm Transparency at [37] (Kiefel CJ and Keane J).^[15] The burden will plainly be substantial and direct if the prohibition on conduct introduced by the impugned laws is not constrained by any existing law.
15. Gageler J (as his Honour then was) in Brown at [188] stated that the impact of any given law on political communication (an electoral accountability for the exercise of legislative and executive power) “lies in the incremental effect of the law on the real world ability of a person or persons to make or receive communications which are capable of bearing on an electoral choice.”
Secondly, a closer examination of the above passage from the Second Reading Speech suggest that the Attorney-General may not have necessarily contemplated that there would remain, after the passage of the Bill, the maintenance of what he described as “the rights of all individuals to participate in lawful protest” (or at least a full maintenance of such a right). Rather, he seems to suggest that public assemblies, protests, and demonstrations may be accommodated by the Commissioner of Police not raising objection to such activists under Pt 4 of the Summary Offences Act,^[16] or protests being effected by means of other public assemblies.
16. I will later discuss some inherent limitations in those provisions.
The Attorney-General referred to there being “plenty of ways that the Bill leaves for people to engage in peaceful assembly and the peaceful right of protest” and that it is “really not a matter of criminalising matters that are already unlawful.” The focus was upon the protection of major facilities from “damage or serious disruptions.”
In any event, the operation of the law needs to be evaluated upon the basis of the terms of the legislative provision itself, when properly construed. That assessment can await further discussion, but, in my view, the provisions of s 214A have a reach to public assemblies, protests and demonstrations which are lawful under existing laws.
In those respects, I note that a central issue in these proceedings is whether s 214A effectively burdens the implied freedom.
The plaintiffs’ case was that s 214A effects a significant burden on the constitutionally guaranteed freedom of political communication, in the present matter with respect to protests or public assemblies in which environmental issues about government and politics are agitated: see Clubb at [4] (Kiefel CJ, Bell and Keane JJ).
The State contended that s 214A(1) did not effectively burden the implied freedom because the conduct it proscribes was otherwise unlawful. Alternatively, if the Court were to find an incremental burden, then the State would accept there was a burden, but it was inconsequential.

EVIDENCE

Admission of the evidence

The parties relied upon affidavit evidence in their respective cases together with documentary material.
Subject to issues foreshadowed as potentially arising as to the admission of some parts of that evidence, there was tendered (without objection), a Court Book (marked Exhibit 1 in the proceedings) (the contentious material was also contained within the Court Book). There was also tendered a map of Town Hall Station (Exhibit 2).
The affidavit evidence in the plaintiff’s case was as follows:

Affidavit of Helen Laura Kvelde affirmed 24 October 2022 (“First Kvelde affidavit”);

The Affidavit of Ms Kvelde affirmed 10 March 2023 (“Second Kvelde affidavit”);

Affidavit of Dominque Anne Jacobs, affirmed 22 October 2022 (“First Jacobs affidavit”);

Affidavit of Ms Jacobs affirmed 10 March 2023 (“Second Jacobs affidavit”).

The plaintiffs also relied on documentary material in the form of newspaper articles featuring a discussion of various protests together with an extract from a book written by Paul Strangio entitled “Keeper of the Faith: a biography of Jim Cairns” (collectively “the plaintiffs documentary material”).^[17]
17. The articles were from newspapers including the Sydney Morning Herald, the Canberra Times, the Sun (Sydney), The Guardian, the Star Observer and City Hub.
The State relied upon two affidavits:

Affidavit of Gary Bevan, sworn on 6 February 2023;

Affidavit of Courtney Lauren Raad, affirmed on 6 February 2023.

At the time of affirming her affidavit, Ms Raad had before her a bundle of documents marked CR-1. These documents formed part of Exhibit 1. Also before Ms Raad at the time of affirming her affidavit was a USB marked Exhibit CR-2. The State produced an aide-memoire summarising the content of Exhibit CR-2 (which also formed part of Exhibit 1).
Upon the tendering of the plaintiff’s evidence, Mr M Sexton, SC who appeared for the State with Mr M Pulsford of counsel, initially submitted that it may be that “there would be no relevant evidence that would be required in this kind of case”. He further submitted that the plaintiff’s affidavits and documentary evidence were not relevant, except perhaps as to the question of standing. (Mr Sexton SC confirmed, however, that the State contested the standing of the plaintiffs). Mr Sexton SC accepted that there would be difficulties in ruling on questions of relevance in a constitutional case and “all of the materials should go in, subject to relevance.”
The disposition of this question was left on the following basis, as articulated by the Court and agreed to by the parties:

“The material would come in without any desire for cross examination on the material…there may or may not be questions of relevance. To the extent there is questions of relevance then counsel can identify that in their submissions, to the extent they may wish to raise it. I will treat the material then, to the extent that it’s raised in that fashion, as provisionally relevant subject to my ultimate judgment in the matter.”

The Court then emphasised the need for counsel to state their position with respect to the “factual material very clearly and [the] finding that they seek with respect to [the material] very clearly.”
During the course of the final submissions, no submission was advanced by counsel appearing for either party in the proceedings raising an issue of admissibility of the evidence, including questions of relevance. Hence, no issue arises for the Court to determine in that respect. However, given the way in which this issue was developed, I will briefly consider the relevance of and weight to be given to the documentary evidence of the plaintiffs.
In my view, the documentary evidence of the plaintiffs is relevant to the question of burden together with forming part of the factual background. The affidavit evidence of the plaintiffs is primarily directed to standing but is also relevant, as I will discuss, to burden. I reject the State’s contention that the consideration of such material with respect to the question of validity “[distorted] possibilities” for reasons developed below. No different conclusion should be reached with respect to the State’s (counterpart) evidence.
The documentary material led by the plaintiffs was primarily concerned with the significance of political communications being burdened by law. Thus, the various newspaper articles tendered were said to constitute evidence of various major historical protest activities, particularly situated at or near Sydney Town Hall. It is important to emphasise that that which is prescribed as a major facility is not Sydney Town Hall but Town Hall Railway Station. However, whilst protests vary in size, protests around Sydney Town Hall can have the real potential of causing impediments to using entrances to Town Hall Railway Station and consequently, persons being redirected. That would seem to be the actual experience of large protests at Sydney Town Hall.
In this respect, the newspaper articles concerned major protests against the Vietnam war, gender inequality, Aboriginal deaths in custody, legislation affecting the LGBTIQA community and the celebration of 26 January. Essentially, this evidence was led to demonstrate that, given the number of participants in the protest, the protest would be apt to involve protesters remaining near Town Hall Station (that is, in the Town Hall precincts), causing, inter alia, train goers to be redirected at least to another station entrance.^[18]
18. Reference was also made to a peace rally against the Iraq war involving some 200,000 to 300,000 people in 2003 where dozens of people were reported to have sought a vantage point at the tunnel of the entrance at St James Station.

These large rallies stand, to some extent, in contrast with the evidence of protest activities by Ms Kvelde and Ms Jacobs as summarised below. Nonetheless, one common factor was the attractiveness of conducting protests at such locations.
I have drawn attention to the plaintiffs’ documentary material in this way, notwithstanding, at the end of the day, no apparent objection was taken to it because of the nature of the material; being primarily newspaper articles. It is no doubt for this reason that the plaintiffs’ submitted that the Court would, in any event, take judicial notice of the long history of political activities of the kind described in the newspaper articles in Australia (centred around Sydney Town Hall). I agree with the plaintiffs’ submission to that effect and in doing so cast doubt upon the proposition advanced by the State that the consideration of such material, confined as it is to Town Hall Station, would distort possibilities, particularly taking into account the plaintiffs’ evidence that such locations are frequently used for protests, given their proximity to public transport and their high visibility to the public.^[19]
19. In part that submission sprung from a proposition that the evidence of Ms Kvelde and Ms Jacobs did not relevantly demonstrate that s 214A(1) would not have operated with respect to those protests if it applied at the time or that the protests constituted unlawful obstructions. I will in due course reject both propositions.
A constitutional fact is “… information which the Court should have in order to judge properly the validity of this or that statute or of this and that application by the Executive Government of State or Commonwealth of some power or authority that it asserts”: Breen v Sneddon (1961) 106 CLR 406 at 411 (Dixon CJ).
A distinction was drawn between such facts and other facts in Gerhardy v Brown (1985) 159 CLR 70 by Brennan J as follows (at 141-143):

“There is a distinction between a judicial finding of fact in issue between the parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a Court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants…
The Court may, of course, invite and receive assistance from the parties to ascertain the statutory facts, but it is free also to inform itself from other sources… the Court must ascertain the statutory facts “as best it can” and it is difficult and undesirable to impose a priori restraint on the performance of that duty.”

More recently, Gageler J (as his Honour then was) stated in Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 (“Maloney”) at [351]:

[351]…“A court finding constitutional facts is not constrained by the rules of evidence. The Court “reaches the necessary conclusion of fact largely on the basis of its knowledge of the society of which it is part”, supplementing… that knowledge [by processes] which [do] not readily lend [themselves] to the normal procedures for the reception of evidence.”^[20]
20. Similar views were expressed by Heydon J in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [621], [629] and [633].

Plainly, the Court’s power to enquire into constitutional facts is not unlimited and, in that respect, attention is often directed to the authoritativeness, persuasiveness or public nature of the material: Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63; [2003] FCAFC 237 at [49] (Branson, Hely and Selway JJ).^[21] I would note, however, in Maloney, Gageler J (as his Honour then was) stated (at [353]):

[353] The sources may, but need not, be ‘official’. It is desirable, but not inevitable that they be ‘public or authoritative’. They can include inferences… drawn from the regulations and statutes themselves ‘and statements made at the bar’.
21. See also Lendlease Building Contractors Pty Limited v Australian Building and Constructions Commissioner (No 2) [2022] FCA 192 at [183]-[184].

On the basis of these authorities, I consider the Court may have regard to the newspaper articles (and the extract from a book), relied upon by the plaintiffs, as a representation of that which is otherwise known by the Court (as well as popularly known) with respect to significant historical protests, to conclude that the Sydney Town Hall has been a popular site for protest and that historically those protests have been of large scale. As I have mentioned, this conclusion is buttressed by Ms Kvelde’s and Ms Jacob’s evidence as to the desirability of the use of such locations for protest.
I agree with the submission of Mr S Free SC with whom Mr F Graham, Ms E Jones and Mr D Farinha of counsel, appeared for the plaintiffs, that it may be inferred, given the size of the protests (as depicted in the photography and narrative in the newspaper articles, Exhibit 2) and by taking judicial notice, that protests of that character have typically occurred near Town Hall Railway Station (“Town Hall Station”) at large scale. It is quite likely that train commuters or other persons using the underground surrounds of the Railway Station would need to be redirected to enter or exit the railway station via passageways situated geographically away from the protesters (see Exhibit 2). This would most likely be away from their routine or intended points of ingress or egress. I accept that some large protests may deter any use of the Railway Station or substantially impede points of access to and egress from it for the duration of the protest and that in some cases these actions may have constituted a serious disruption or obstruction for the purpose of subs (1)(b) or closure (for the purposes of subs (1)(c) as opposed to being redirected (a distinction I will later discuss).
Given the conduct of the proceedings, no issues as to procedural fairness can properly arise in the present matter.^[22] I note that the Court received in evidence a map of Town Hall Station and that the parties made submissions using the Town Hall Station for purposes of illustration. Further, as mentioned, Ms Kvelde’s evidence directly concerned a protest near Town Hall Station.

The Affidavit Evidence

22. Maloney at [353].

Ms Helen Kvelde

Ms Kvelde is 71 years old and lives in Wingham.^[23] She participated in a few protests between 1969-70 against the Vietnam War and then in the early 1990s against the Gulf War.^[24] In 2018, she joined and became a member of the “Mid Coast Nannas.”^[25] That group is part of the “Knitting Nannas”, whose members agree and adhere to “The Nannafesto”.^[26] The Nannafesto relevantly states the following:

“We peacefully and productively protest against the destruction of our land, air, and water by corporations and/or individuals who seek profit and personal gain from the short-sighted and greedy plunder of our natural resources. We support energy generation from renewable sources, and sustainable use of our other natural resources. We sit, knit, plot, have a yarn and a cuppa, and bear witness to the war against those who try to rape our land and divide our communities.
…
The Knitting Nannas aims are to bring attention to the issues surrounding unsustainable resource exploitation; to show the people, the media, the politicians and the exploiters just how far from radical the “extremists” who oppose their practices are; to entertain and inform the public, and bring new supporters to the movement. We aim to make protests and blockades safe, to support people assert their right to protest assertively and without personal and physical danger. We want to make sure that our servants, the politicians, represent our democratic wishes and know they are accountable – to us. We are very happy to remind them of this – often. We represent many who cannot make it out to protests – the elderly, the ill, the infirm, people with young children and workers.
…”
23. First Kvelde Affidavit at [3].
24. Ibid at [6]-[7].
25. Ibid at [11].
26. Ibid at [10].

As a member of the Mid Coast Nannas, Ms Kvelde would meet with other members on a regular basis. When she joined, they were meeting once a month outside politician’s offices or the IGA supermarket in Taree.^[27] From about 2018, they began to meet weekly to sit outside the office of their local Member of Parliament.^[28]
27. Ibid at [12].
28. Ibid at [13].
In addition to being a member of the Mid Coast Nannas, Ms Kvelde is also a member of Mid Coast Extinction Rebellion, No Electricity from Forests and the North East Forest Alliance.^[29] She has participated in protest actions with those groups and undertaken non-violent direct action training with Extinction Rebellion.^[30]
29. Ibid at [14].
30. Ibid at [14].
Ms Kvelde’s affidavit details a number of protest actions that she has participated in. It is clear that she has a history of, not just attending and observing, but participating in protests. The extent of her involvement ranges from marching on roads and footpaths,^[31] to waving flags and banners,^[32] to stopping traffic in the middle of the road and putting her body in harm’s way.^[33] It is not necessary to set out every single example. The salient features of her evidence are set out in what follows.
31. Ibid at [18].
32. Ibid at [30].
33. Ibid at [19].
Ms Kvelde has protested at or within close proximity to public transport hubs, including train stations and ferry wharves. For example, in or about December 2020, Ms Kvelde joined an Extinction Rebellion demonstration at Central Station where the country trains depart.^[34] The people there dressed up in bird and animal costumes to represent species going extinct. Another example was on 17 October 2020 when Ms Kvelde and about 20 other people dressed up in Hawaiian shirts and wore masks depicting the then Prime Minister, Scott Morrison, at Circular Quay where the Manly Ferry departs.
34. Ibid at [28].
Based on her experience, Ms Kvelde explained that protest actions occur in or around the Sydney CBD and within close proximity to transport hubs, such as Central Station and Circular Quay ferry wharves, because of accessibility and ease of access for older and incapacitated people to attend, the visibility to the community by being in a location with lots of passers-by, and public transport locations attracting a cross-section of the public.^[35]
35. Ibid at [19] and [27].
According to Ms Kvelde, the locations of protests is of importance to the message that she is seeking to convey. On 10 June 2021 and 23 March 2022, she participated in protests at Port Botany. She reasoned that, although the location does not attract many passers-by, “it is a location directly involved in the importation of fuel into the country which is significant to me as a protest location”^[36] and that “as a location [Port Botany] was symbolic of the message about the impact of fossil fuels on the climate and a location that represents the capitalist greed in the system as a place of imports and exports”.^[37]
36. Ibid at [30].
37. Ibid at [31].
She also explained that dressing up in costumes, including on one occasion as bees and beekeepers and handing out honey was to draw attention to the loss of bees^[38] and attracted attention from passers-by.^[39]
38. Ibid at [18] and [20].
39. Ibid at [28].
Ms Kvelde has participated in protest actions that involve disrupting or blocking traffic. As part of the “Spring Rebellion” on 7 October 2019 to “draw attention to the climate and species extinction emergencies,”^[40] Ms Kvelde crossed Elizabeth Street in Sydney CBD at the traffic light and, with two other people, laid down in the middle of the road. She said, “To me, there is something symbolic about putting your body in harm’s way as a mechanism to draw attention to the climate crisis.”^[41] She then moved to Town Hall Station. I will return to that evidence.
40. Ibid at [16].
41. Ibid at [19].
Ms Kvelde’s actions of protesting on roads have had the effect of disrupting traffic. For example, as part of the “Spring Rebellion” in October 2020, Ms Kvelde and two others blocked the end of Macquarie Street by setting up a bed at Parliament House. She explained that the purpose of this protest was “to represent the message that the government should ‘get out of bed’ with the fossil fuel industry.”^[42] Macquarie Street was blocked for about 15 minutes and vehicles turned around to take other routes through the city.^[43]
42. Ibid at [25].
43. Ibid at [26].
Ms Kvelde claims that “the majority of [her protest] actions were directed at community education and engagement not disruption.”^[44] In relation to why she has been engaged in protest actions, Ms Kvelde said:

“I am terrified, angry, and grief-stricken about the climate emergency and ongoing and increasing extinction of species. I feel it is my responsibility to act out of a sense of duty to all the young people. One of the reasons that I attend as many actions as I have done in the past is that I believe exposure and the sheer number of persons standing up for what they believe in is an effective means of bringing the climate crisis to the forefront of our government and community consciousness.”^[45]
44. Ibid at [35].
45. Ibid at [33].

Ms Kvelde believes that the impugned provisions “contribute to, and exacerbate, the apprehension and fear [that she] feel[s] about attending protests, especially given the real possibility of gaol time.”^[46]
46. Ibid at [35].
Her evidence is that she has been charged in relation to her protest actions at Port Botany^[47] and was placed on bail.^[48] One of her bail conditions was “not to protest at any public location unless the protest was lawful.”^[49] In June 2022, Blockade Australia were organising a series of events in Sydney CBD. Ms Kvelde said that she wanted to “just turn up on the day” but the impugned provisions made her “afraid that [she] could be arrested for attending if the action happened to be near a major facility … and cause disruption. I therefore chose not to attend.”^[50] Ms Kvelde stated:

“Not attending this protest action caused me to have mixed emotions – I was disappointed in myself for not attending; I was scared and fearful of arrest if I did attend; and I was frustrated that I felt like I could not go out and connect with like-minded people and raise awareness regarding the climate crisis.”^[51]
47. Ibid at [31]. There is no evidence as to what the charges were or the precise conduct giving rise to the charges.
48. Second Kvelde Affidavit at [5].
49. Ibid.
50. Ibid at [5].
51. Ibid at [6].

Ms Kvelde stated that that “[d]ue mostly to the new anti-protest law and the risk of being charged with an offence that carries a prison sentence of up to 2 years,” her attendance and participation in protest actions “has not been as active as what it was prior to the introduction of those laws.”^[52] Specifically, there was an upcoming action through Rising Tide in Newcastle that she assumed may include an action in the Port of Newcastle but she had no plans to attend because of the impugned laws.^[53]
52. Ibid at [8].
53. Ibid at [9].

Ms Dominique Jacobs

Ms Jacobs is 58 years old, lives in Gloucester and works as a part-time educator at a local preschool.^[54] She is also an English teacher to Afghan students online. She has obtained a Certificate III in Conservation and Land Management and a Bush Regeneration Statement of Attainment through TAFE NSW. Around 2014, Ms Jacobs joined the Knitting Nannas.
54. First Jacobs Affidavit at [3]-[6].
Ms Jacobs became involved in protesting against AGL’s coal seam gas exploration in Gloucester,^[55] the place where she has lived for 30 years.^[56] Her involvement could be described as extensive. She was part of a roster that helped out three times a week at the rotunda (which was a public rest stop about 3-4 kilometres from the turn off to where the AGL project site was located and where project employees were housed).^[57] She organised a protest walk as a “visual objection” to demonstrate their opposition to the erection of “No Stopping” signs along the road to the project site and to the AGL project more broadly.^[58]
55. Ibid at [9].
56. Ibid at [4].
57. Ibid at [16].
58. Ibid at [20].
From approximately 1 October 2014, Ms Jacobs and her husband, Mr Brett Jacobs, went to the AGL project site daily and, along with other protesters, sat or stood in front of the gate with signs. The police would attend before buses of site employees would attend with police escort. Ms Jacobs explained:

“To me, being at the gate was a direct message to AGL that people didn’t want them here. This was a way to be visible and tell AGL that people were not happy with the AGL Project and, on occasion, being at the gate also had the effect of disrupting AGL’s work as another way of making our opposition felt.”^[59]
59. Ibid at [22].

Between October 2014 and January 2016, Ms Jacobs and others participated in “No Stopping Gloucester” walks to and around the gate of the AGL project, through Gloucester and surrounding suburbs.^[60] On one of those occasions, on 29 November 2014, about 100 people from the walk entered the AGL project site and the police became involved.^[61] Ms Jacobs also helped organise “Walk the catchment” walks in Foster, Taree and Wingham, and she promoted the walks on Facebook.^[62]
60. Ibid at [23].
61. Ibid at [24].
62. Ibid at [27].
Ms Jacobs has been involved in other protest actions, which have involved obstructing traffic, entering private facilities and chaining a part of her body to gates. For example, on 18 January 2016, Ms Jacobs was protesting in opposition to Santos’ coal seam gas exploration in the Piliga and was arrested and charged with obstructing traffic and refusing to obey a police direction in relation to locking herself to the gates of Santos’ Leewood facility with a bike lock.^[63] She pleaded guilty but no conviction was recorded.^[64] On a separate occasion, on 21 February 2016, Ms Jacobs and approximately 30 other people did a “walk on” to Santos’ Leewood site, entering through a hole in the fence.^[65] They sat in a circle for approximately one hour and the police allowed them to leave without charges.
63. Ibid at [33] and [34].
64. Ibid at [34].
65. Ibid at [36].
Ms Jacobs’ protest actions have extended to public transport facilities in Sydney CBD. She noted that Martin Place Railway Station was commonly used for Knitting Nannas protest activities.^[66] She said that the location is easily accessible for older people with mobility issues and for people coming from out of Sydney and offers excellent visibility. On about 23 June 2016 and 18 March 2019, Ms Jacobs and the Knitting Nannas were protesting around the entrance of Martin Place Station.^[67] Their group blocked the entrance to the station, not completely blocking access, but so much so that people had to walk around the group. Martin Place Station is situated close to Parliament House, where, in 2016, Ms Jacobs symbolically locked on with “chains” that she and others had knitted to the fence of Parliament House for the “world’s biggest lock on”.^[68]
66. Ibid at [38].
67. Ibid at [39] and [45].
68. Ibid at [39].
Ms Jacobs’ protest activities have included protesting within close proximity to railway stations. For example, on 6 October 2019, she took part in an Extinction Rebellion action that began from Belmore Park, which is adjacent to Central Station.^[69] After marching, she and others sat down to occupy the intersection of George Street, Pitt Street, Quay Street, Lee Street and Broadway. I take on judicial notice that these are busy streets, even on a Sunday, and are located in Sydney CBD within close proximity to Central Station. After the police attended and warned people that they would be arrested if they did not move on, Ms Jacobs moved on as requested.^[70] Ms Jacobs explained that the purpose of this action “was to peacefully occupy the centres of power and raise awareness about our climate and ecological emergency.”^[71]
69. Ibid at [47].
70. Ibid at [47].
71. Ibid at [47].

This interest outweighs “any slight burden on the freedom.” The law is not directed to communicative activity and only burdens communication incidentally to protect major facilities. The provisions proscribe the consequences in subss (1)(a)-(d) caused by the conduct.
This submission needs to be considered in the light of the conclusions in the judgment that the provision burdens the implied freedom. The burden imposed is deliberate and is certainly not insubstantial.
The law deters of lawful protest activity by the imposition of a broad prohibition on such activities. Those constraints, as the plaintiffs put it, are not “tethered to any requirement to intend adverse consequence, subject to exceptions that are narrow in operation.” As stated by Kiefel CJ, Bell and Keane JJ in Brown (at [145]), the law is likely to deter protests of all kinds at specified locations often used for political communication, such as remaining near Town Hall Station for a protest at the Sydney Town Hall.
In my view, the adverse effect of s 214A on the implied freedom in terms of deterring otherwise lawful protests significantly outweighs the benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves. It does represent overreach from the legislative purpose.
Thus, even if s 214A was suitable and necessary (noting I have found to the contrary), it is not adequate in its balance.

CONCLUSION: IMPLIED FREEDOM

When viewed in the light of conduct in the chapeau consisting of entering or remaining on or near a major facility, the Court finds that subs 214A(1)(c), so far as the provision concerns the closure of part of a major facility, and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication.

ROADS REGULATION

Clause 48A(1) of the Roads Regulation 2018 (NSW) is not invalid

The plaintiffs sought a declaration that cl 48(A)(1) of the Roads Regulation is invalid because it is beyond the regulation-making power conferred by the Roads Act. For reasons which follow, I do not accept that contention based, as it is, upon the grounds that the Regulation lacks reasonable proportionality and cl 48A effects an impermissible sub-delegation of power to prescribe “major roads”.

The Legislation and Delegated Legislation

By the Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 144G of the Roads Act was introduced in 2018 (see Sch 2.4).
Prior to the commencement of the Amending Act, s 144G(1) prohibited conduct causing damage to, or serious disruption or obstruction to the use of the Sydney Harbour Bridge or any other major bridge or tunnel. Section 144G(2) provided that serious disruption or obstruction would be made out if, as a result of the person’s conduct, the bridge or tunnel was closed or “vehicles or pedestrians [were] redirected.” Section 144G(6) provided that a “major bridge or tunnel” was a “bridge or tunnel prescribed by the regulations for the purposes of this section.” Until 24 March 2022, no such prescription was made, with the result that the provision related only to the Sydney Harbour Bridge.
In the Second Reading Speech to the Bill introducing s 144G, the Minister said:

“To provide greater deterrence, the bill creates an offence relating to actions that cause damage, disruption or obstruct vehicles and pedestrians using the Sydney Harbour Bridge. If a person causes or intends to cause damage to the structure or seriously disrupts traffic, including trains, using the bridge or tunnel, or commits any offence punishable by imprisonment or arising under the Summary Offences Act 1988, he or she will be liable to a maximum court penalty of 200 penalty units— currently $22,000—and/or two years imprisonment. In future this provision can be extended by regulation to other major bridges or road tunnels, if warranted.”

The Amending Act extended the existing prohibition in s 144G(1) in various respects including, as relied upon in the plaintiff’s contentions, the addition of “major roads” I will turn then to the current provisions.
Part 9 of the Roads Act is headed “[r]egulation of works, structures and activities.” Division 7 (ss 144G-144H) is titled “[t]respassing on Sydney Harbour Bridge and other major bridges, tunnels and roads”.
Section 144G(1) was earlier extracted in this judgment. That provides that a person must not enter, remain on, climb, jump from or otherwise trespass on any part of the Sydney Harbour Bridge or any other “major bridge, tunnel or road”, if that conduct causes damage to the bridge, tunnel or road or seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel, or road. Section 144G(2) provides that a person seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road if, as a result of the person’s conduct, the bridge, tunnel or road (or any part of the bridge, tunnel or road) is closed or vehicles or pedestrians are redirected.
Subsections 144G(3), (4), (4A), (4B) and (5A) of the Roads Act contain certain exceptions.
Section 144G(6) of the Roads Act states:

In this section–
major bridge, tunnel or road means a bridge, tunnel or road prescribed by the regulations for the purposes of this section.
vehicle includes a train.

Subsection 264(1) of the Roads Act relevantly empowers the Governor to “make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act …”
The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 inserted cl 48A of the Regulation. It prescribed “any bridge or tunnel within the Greater Sydney Region” as a major bridge or tunnel. As earlier mentioned, shortly after the insertion of cl 48A, it was amended by the Roads Amendment (Major Bridges and Tunnels) Regulation (No 2) 2022, so as to prescribe bridges or tunnels in the Greater Sydney Region, the City of Newcastle or the City of Wollongong, and also bridges or tunnels that join main roads, highways or freeways.
As earlier noted, s 48A was amended by the Roads Amendment (Major Roads) Regulation 2022. This provision has earlier been set out in this judgment. The Interpretation Act provides that, except in so far as the contrary intention appears in the instrument, “[w]ords and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made”: ss 5(2) and 11 of the Interpretation Act. The Dictionary to the Roads Act defines “main road”, “highway”, “freeway” and “tollway” as meaning a particular class of road declared to be a “main road”, “highway”, “freeway” and “tollway” by order in force under ss 46, 47, 48 or 52 of the Roads Act respectively. A “bridge” is defined as including “any gate, pier, fender, dolphin or platform or any other thing incidental to the use or protection of the bridge.” There is no contrary intention in the Regulation which displaces these definitions.
A public road is defined in the Dictionary of the Roads Act to mean any road that is opened or dedicated as a public road and any road that is declared to be a public road for the purposes of the Roads Act. Under s 55, the classification of roads under Div 1 of Pt 5 can apply to the whole or part only of a road. A part of a road may be differently classified to another part and the same length or width of a public road may have more than one classification.
As earlier mentioned, the Minister may only make an order for the classification of roads under Div 1 of Pt 5 on the recommendation of Transport for New South Wales (TfNSW) in accordance with s 54. There are certain consultation requirements required of TfNSW under Div 2. As the State submitted, the classification of roads is significant for the purposes of distributing certain functions between TfNSW and other roads authorities. Under Div 3 TfNSW is required to keep a record of all classified roads pursuant to s 163(4) and that record must be available for public inspection as outlined in s 163(6).

Reasonable Proportionality

In written submissions, the plaintiffs contended that the Regulation may be found to be invalid, as subordinate legislation, where its effect is so unreasonable that it cannot be regarded as falling within the contemplation of the legislature in enacting the empowering Act, in this case the Roads Act. It was thus submitted by the plaintiffs that the question raised in the present proceedings is whether cl 48A(1) is so lacking in reasonable proportionality as not to be a real exercise of power under s 264(1) of the Roads Act; reliance being placed, in that respect, upon South Australia v Tanner (1989) 166 CLR 161at 165, 167-168 (Wilson, Dawson, Toohey and Gaudron JJ); Williams v Melbourne Corporation (1933) 49 CLR 142 at 155 (Dixon J) and Clements v Bull (1953) 88 CLR 572 at 577 (Williams ACJ and Kitto J).
However, as was submitted on behalf of the State, the relevant inquiry in the present context is as to unreasonableness, not reasonable proportionality. In Athavle v State of New South Wales [2021] FCA 1075 (“Athavle”) at [98], Griffiths J held “it is well settled that disproportionality is available only where the provision empowering subordinate legislation to be made is directed to a particular purpose, as opposed to it having a connection with a particular subject matter.”
Reference may also be made in this respect to the judgment of Leeming JA (with whom Bathurst CJ and McColl JA agreed) in Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499 at [66]-[67] as follows:

[66] It is sufficient to confine this aspect of the argument to ultra vires based on the express requirement that the regulation not be inconsistent with the Act. As noted above, the EPA maintained, beyond this, that the regulation needed to be capable of being considered to be reasonably proportionate to the enabling purpose. I doubt that is so.
[67] It is clear law that the starting point is to determine “the true nature and purpose of the power” to make the regulation: Williams v Melbourne Corporation (1933) 49 CLR 142 at 155. It is clear that not every regulation-making power is conferred in purposive language such as that in South Australia v Tanner. That is why French CJ repeatedly emphasised in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 87 ALJR 289 that the proportionality test was confined to “purposive powers entrusted to a public authority to make delegated legislation” at [58], “delegated legislation made in furtherance of a purposive power” at [59] and “delegated legislation made in the exercise of a purposive power” at [62] (emphasis added). In this Court, in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWSC 348; 91 LGERA 31, Handley JA said that a power to make a State environmental planning policy was “not purposive and its exercise is not required to be conducive to a statutory object”: at 38 (the other members of the Court regarded the power as a purposive power). I agree with the statement by Mr Herzfeld that proportionality:
“applies only where the empowering provision empowers subordinate legislation directed to a particular purpose, as opposed to subordinate legislation which has a connection to a particular subject matter”: P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources (2013) Thomson Reuters, p 383.

Whilst various tests have been prescribed as to the test for unreasonableness in this context, such as the delegated legislation being “so oppressive or capricious that no reasonable mind can justify it”: City of Brunswick v Stewart (1941) 65 CLR 88 at 97 (Starke J); see e.g. Athavle at [94], it is sufficient for present purposes to note, as the State did, that there is a “higher threshold” for unreasonableness invalidating delegated legislation: Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1 at [48]-[54] (French CJ).
The case for the plaintiffs in this respect may be summarised as follows:

Section 246 empowered the Governor to make regulations “for or with respect to any matter that is required or permitted to be prescribed.” Clause 48A concerns matters under s 144G(6) permitted to be prescribed.

Section 264(1) does not permit the Governor to extend the scope of general operation of the Roads Act by regulations or add new and different means of carrying the purposes of the Act out or to depart from or vary the plan which the legislature has adopted to attain its ends: Shanahan v Scott (1957) 96 CLR 245 (“Shanahan”) at 250 (Dixon CJ, Williams, Webb and Fullagar JJ);

That submission holds good for the two tests in s 264, namely, first with respect to any matter that by this Act is required or permitted to be prescribed, and, secondly, “that is necessary or convenient to be prescribed for carrying out or giving effect to this Act” which do not differ in scope: New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 (“Work Choices”) at [415] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

Section 144G(6) clearly empowers the Governor to determine, through regulations, the roads which are sufficiently “major” to be a “major road”. Reasonable minds may differ about that characterisation, but the legislature must be taken to have intended that a “major road” would be something different from a “main road”. That conclusion follows from the legislature’s choice not to utilise the concept of a “main road”, as already established by the Roads Act, for the purposes of s 144G(1). The focus of the extrinsic materials on “major disruptions to the New South Wales transport network”, “major traffic delays”, “major inconvenience”; and “direct economic loss and lost productivity” strongly suggests that the legislature intended to create a narrower category of roads to which s 144G(1) would apply, by comparison to the roads classified as main roads, largely for administrative reasons, under the Roads Act.

In the present case, cl 48A prescribes all “main roads” as “major roads” for the purposes of the offence provision in s 144G(1) of the Roads Act. Because it directly conflates two concepts which the legislature intended to keep separate, namely, “major roads” and “main roads”, cl 48A of the Regulation cannot be regarded as falling within the contemplation of the legislature and is not a real exercise of the power in s 264(1) of the Roads Act, when read with s 144G(6). By virtue of these analyses, cl 48A(1)(a) is invalid.

The plaintiffs also challenged the validity of cl 48A(f) insofar as that Regulation prescribed all bridges or tunnels within the Greater Sydney Region, City of Newcastle and City of Wollongong. Insofar as the Regulation did so, it was submitted, it was not reasonably proportionate.

The purpose of the power to prescribe a bridge, tunnel or road as a major bridge, tunnel, or road for the purposes of s 144G must be to identify those bridges, tunnels or roads that have the character of being, or answer the description of, “major”. The geographic determinations utilised in cl 48A(f) do not seek to undertake an assessment of any particular bridge or tunnel.

It is not reasonable to prescribe every bridge or tunnel within the large areas of Sydney, Newcastle and Wollongong with the classification of “major”. The significance of the adjective “major” is to differentiate between different types of bridges or tunnels. To prescribe every bridge and tunnel within a large geographical area encompassing the main urban regions of NSW is to ignore that object of differentiation. The blanket and non-discriminating approach of cl 48A(f) in that regard impermissibly expands the scope of s 144G and adds a new means of carrying its purpose into effect or departs from the legislature’s plan to attain its ends, by replacing the qualitative assessment of whether a bridge or tunnel is major, with an assumption based on geography.

Consideration

Whilst it is true, as submitted by the plaintiffs, that there are two limbs for the making of regulations under s 264, the first limb being “with respect to any matters that by this Act is required or permitted to be prescribed” and the second being “that is necessary or convenient to be prescribed for carrying out or giving effect to [the] Act,” I reject the contention that those limbs do not differ in scope in order to test the validity of the Regulation.
The two tests created by the two limbs of s 264 compose different tests for validity. In R v Goreng-Goreng (2008) 220 FLR 21 at [77] Refshauge J stated that regulations enacted pursuant to the “required or permitted to be prescribed” limb “do not have to pass the same test of validity” as arising under the necessary or convenient limb. The learned authors DC Pearce and S Argument in Delegated Legislation in Australia (2017) at 14.23 stated as follows:

“The most frequently cited case relating to the power to make regulations necessary or convenient for giving effect to an Act is Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 . That case also serves as a good factual illustration of the approach of the court to the resolution of the validity issue. Regulation 44 of the Egg and Egg Pulp Marketing Board Regulations 1953 (Vic), made under the Marketing of Primary Products Act 1935–1953 (Vic) read: ‘No person shall without the consent of the Board place or cause to be placed any eggs in any cold storage premises nor subject any eggs to any preservative treatment.’ (There was then a proviso exempting domestic storage eggs from the operation of the regulation.) It was sought to argue that the regulation was valid under a power to make regulations necessary or expedient for the administration of the Act or for the carrying out of its objects. The High Court, after examining the Act, concluded that the regulation extended to eggs that were no longer (or, indeed, may never have been) part of a marketing scheme provided for under the Act. The Act was concerned with marketing schemes and not with the general sale and control of eggs, and therefore the regulation was invalid.
The High Court (at 250) stated the general approach to be adopted when considering the validity of delegated legislation purporting to be made under a general power. The court examined authorities relating to the topic and concluded that where there is a power to make regulations necessary or convenient for giving effect to an Act:
… such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

The Court concluded that in this particular case the regulation extended to eggs with which the board had, and could have had, nothing to do and also extended to those which the board had sold unconditionally. The provision was therefore:
… much more than an elaboration, filling in or a fulfilment of the plan or purpose which the main provisions of the Act have laid down or, if the expressions be preferred, have “outlined” or “sketched”. It means that an attempt has been made to add to the general plan or conception of the legislation and to extend it into a further field of regulation, namely that of the use, handling or disposition of eggs independently of the board’s marketing of the eggs vested in or otherwise acquired by the board. [at 253–4]

The statements of the High Court were approved by the Privy Council in Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629. The passage quoted above from 250 was also approved by the High Court in Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293 at 298 CaseBase document for this case and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [61] CaseBase document for this case.”

The plaintiffs’ reliance on the Work Choices decision and Shanahan is misplaced as the first named judgment of the High Court dealt with regulations which specified matters which, to use the language of the industrial legislation then under consideration, were “prohibited content” and the latter was not concerned with the scope of power of the second limb of s 264.
There was a question of construction raised by the plaintiffs regarding s 144G(6) and cl 48A(1) and the power thereby conferred on the Governor to determine the meaning of the composite expression “major bridge, tunnel or road”. However, I do not consider the construction proposed by the plaintiffs may be accepted. Section 144G(6) does not confer a power on the Governor to determine which bridges, tunnels or roads are “major” for the purposes of that expression. Rather, s 144G(6) provides the major bridges, tunnels or roads are those designated by the Regulation for the purpose of s 144G(6) such that the expression major bridge, tunnel or road is entirely defined by reference to the bridges, tunnels or roads prescribed by the Regulation.
Clause 48A(1) provides that each bridge, tunnel or road in paragraphs (a) to (f) are a major bridge, tunnel or road for the purposes of s 144G. That is not a specification of what is “major” but a provision in the nature of a deeming provision which specifies the bridges, tunnels or roads which are a major bridge, tunnel or road for the purposes of s 144G.
The acceptance of the primary submission advanced by the State as a matter of construction does not result in too great a distinction between power to make regulation with respect to a particular subject matter and a power to make regulations directed to a particular purpose as submitted for the plaintiffs. This construction is properly available upon the text of ss 264 and 144G and no contrary intention is discernible as a matter of context or evident purpose. Nor does it follow that the regulations adoption of the concept of a major road for the purposes of s 144G(1) self-evidently evinces an intention to treat a major road as something different to a main road or that the legislature intended to create a new category of roads within s 144G(1) than main roads.
Thus, I do not consider that cl 48A(1)(a) conflates two concepts which the legislation intended to be separate.
Any presumption that different words used in the Roads Act denote different meanings (itself a relatively weak principle in the interpretation of the Roads Act: see Taheri v Vitek (2014) 87 NSWLR 403 at [124] (Leeming JA, Bathurst CJ agreeing), is rebutted by the context in which the provisions operate.
As was submitted by the State, in the present case, any presumption is displaced by context. An order under Pt 5 Div 1 of the Roads Act may not be made otherwise than on the recommendation of TfNSW (s 54(1) of the Roads Act) and, in deciding what to recommend to the Minister, TfNSW must take specified matters into consideration, including, relevantly, whether the main road “is or may become a major route for long-distance traffic” (s 59(b) of the Roads Act). The presence of such a criterion for the designation of a “main road” denies the plaintiffs’ suggestion that Parliament intended, by using the expression “major bridge, tunnel or road”, to “create a narrower category of roads to which s 144G(1) would apply.”
Clauses 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness.

Sub-Delegation

The plaintiffs contended that cl 48A(1) does not itself prescribe major roads but incorporates classifications given to roads by the Minister at any time.
It was submitted that the content of the category of “main road”
and “major road” will fluctuate from time to time, depending on orders made by the Minister, and that it was not possible to infer that the Governor (with the advice of the Executive Council), considered the classifications adopted by the Minister for the prescription of what is major for the purposes of cl 48A(1).
It was also submitted that there was no incorporation of particular orders by reference to s 42(1) of the Interpretation Act or the authorisation of the Minister to determine what should be a major road in terms of that which might be permissible under s 42(2)(c) of the Interpretation Act.
However, as earlier discussed, cl 48A(1) prescribes major bridges, tunnels and roads by employing defined terms in the Roads Act. The provision does not rely on any incorporation in accordance with s 42 of the Interpretation Act. For example, the power conferred on the Governor by s 144G(6) and s 246 of the Roads Act has been exercised by the Governor in cl 48A(1), with the Governor prescribing major roads to be a road declared to be a main road, by an order in force under s 46 of the Roads Act.
It may be noted that the Governor prescribed a major bridge or tunnel, in the same way as a bridge or tunnel in the greater Sydney Region, the City of Newcastle and the City of Wollongong. I accept the submission advanced by the State, that tunnels and bridges in those areas, being major population centres in NSW, are capable of being described as major roads, tunnels and bridges, because, by their character, they represent “natural pinch points” for traffic.
Thus, the exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context.
No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.

Conclusion: Roads Regulation

The challenge to the validity of the Regulation (cl 48A(1)(a) and (f)) must fail.

OVERALL CONCLUSION

The Court has concluded that s 214A of the Crimes Act does effectively burden the implied freedom in its terms, operation, and effect. The law is, therefore, constitutionally invalid unless justified.
The purpose of the impugned law may be identified as being to increase deterrents to conduct (specified in the chapeau to the impugned provision) causing damage or serious disruption or obstruction to or closure of major facilities, and hence, causing harm to the community generally. The purpose of the law is not to criminalise conduct merely causing inconvenience to particular persons attempting to use major facilities where such conduct causes them to be redirected. So expressed, the purpose is a legitimate one.
Thus, the first two questions in the McCloy-Brown analysis, as affirmed in Clubb, and applied by this Court in Burton, must be answered in the affirmative.
Authority dictates that, in those circumstances, the Court must consider the third question under the McCloy-Brown analysis evoking consideration of structured proportionality. The Court finds, in that respect, that the answer to question three must be in the negative.
The impugned law is not reasonably appropriate and adapted to advance the legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The Court has found that the impugned law has a legitimate purpose and is suitable, in the sense of having a rational connection to that purpose.
However, the Court has found that the impugned law has failed at the stage of analysis in considering structural proportionality concerning necessity. That is, there is an obvious and compelling alternative to the impugned law which is equally practicable and available and would result in a significantly lesser burden. The impugned law is also inadequate in its balance.
Both of those conclusions concern the operation of subs 214A (1)(c) (so far as the provision concerns the partial closure of a major facility) and subs 214A(1)(d) (so far as those provisions relate to the conduct of entering, remaining on or near to any part of a major facility).
As such, s 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.
As mentioned, that conclusion concerns the provisions 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. The remainder of s 214A(1), by which I intend the chapeau, and subss 214A(1)(a)-(c) (with respect to the full closure of major facilities), in my view, does not represent an unjustified burden on the implied freedom.
That conclusion raises the question of severability or partial disapplication of the invalid components of s 214A.
The plaintiffs sought that the provisions of s 214A be declared invalid, but nonetheless both parties focused particular attention on the validity of subs 214A(1)(d) and to a lesser extent, subs (1)(c). However, neither party addressed the question of severability in the event that any part of the s 214A(1) was found to infringe the implied freedom.
The Court may sever an invalid provision from an Act if severance is consistent with Parliament’s intention for the impugned legislation. There are a number of authorities that discuss this approach with respect to s 15A of the Acts Interpretation Act 1901 (Cth) which creates a statutory presumption in favour of severability. I see no reason why it cannot apply with s 31 of the Interpretation Act in NSW. (See also Monis at [327]-[328] (Crennan, Kiefel and Bell JJ)) and Tajjour at [168]-[171] (Gageler J (as his Honour then was))).
As earlier mentioned, the main limitation in that respect, is that severance will not be available if the Parliament evinces a “positive indication in the enactment that the legislature intended it to have either a full and complete operation or none at all”: Cam & Sons v Chief Secretary (1951) 84 CLR 442 at 454 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
I have found that the provisions of subss 214A(1)(a)-(d) are not interlocking (see Brown at [296] (Nettle J)) but are, in substance, discrete and act in a distributive manner.
As I have found subs 214A(1)(d) to be invalid, and as it is a discrete element of s 214A(1), it may, in my view, be severed.
A more complicated question arises with respect to subs (1)(c) where the provision has been found to be only partially invalid. Nonetheless, the invalid part, in my view, can be subject to partial disapplication because it is discrete, both as between subs (1)(c) and the remaining subss (a)-(b) and (d) but also within subs (1)(c) by the expression “, or part of the major facility”.
The following passages from the judgment of Edelman J in Clubb are applicable in that respect (at [429]-[432]):

[429] In Bank of New South Wales v The Commonwealth, Rich and Williams JJ described these two principles of severance and disapplication in the context of s 6 of the Banking Act 1947 (Cth). Their Honours said that s 6 was capable of giving effect to a provision that would otherwise be inconsistent with the Constitution in two situations:
“where [(i)] the provision contains independent portions within power which are severable, or [(ii)] the provision is capable of operating in a distributive manner in respect of each and every part of the subject matter and its operation can be confined to those parts which are within power”

[430] Similarly, Dixon J spoke of the difference between (i) severing or “separating clauses or expressions”, and (ii) confining a provision “in its operation to so much of the subject it is capable of covering as is constitutionally competent to the legislature, or, as it is sometimes said, whether the general words are to be read and applied distributively”.
[431] The technique of partial disapplication cannot be used if it would alter a statute's general policy or scheme or the specific policy or purpose of the relevant provision. To do so would cross the line between adjudication and legislation. One way in which the general policy or scheme of a statute or a provision could be altered is where the partial disapplication would lead to a result that contradicts or alters any policy of the statute. An obvious instance of contradiction is where the statute or provision evinces a “contrary intention” that it “have either a full and complete operation or none at all”. An instance where the policy of the statute or provision could be altered might be if there were various equally available methods of partial disapplication, so that the provision could “be reduced to validity by adopting any one or more of a number of several possible limitations”.
[432] A second instance where a general policy or scheme will be altered is where the statute or provision, after partial disapplication, would operate differently upon the remaining subject matter from how it would have operated without partial disapplication. For this reason, “the enactment, when read distributively, must operate upon the persons and things affected by it in the same way as it would have operated if it had been entirely valid”.

For the reasons given in this judgment, I do not consider that partial disapplication would lead to a result which contradicts or alters any policy of the statute. The provision does not evince an intention to have either a full or complete operation or none at all. The provision can be reduced validly by the process of partial disapplication.
Clause 48A of the Roads Regulation is not invalid.

ORDERS

For these reasons, it is appropriate that this Court make declarations that the relevant provisions of s 214A are invalid. Having regard to the disposition of these proceedings variously favouring both parties, as a preliminary view, there should be an order to the effect that each party is to pay their own costs.
The orders of the Court are as follows:
THE COURT:

Declares that subs 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.

Declares that subs 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.

Otherwise dismisses the Summons filed 12 October 2022.

Orders that each party should pay their own costs.

Grants liberty to the parties to apply by writing to the Associate to Justice Walton within 21 days of these orders to vary the terms of the declarations and orders.

If possible, I consider it desirable that any exercise of the liberty in order (5) be dealt with on the papers. But in the event that either party wishes to have a hearing on the terms of the declarations and orders or question of costs, the parties should bring in Short Minutes of Order with an agreed programme for the disposition of the relevant issues.

Endnotes

Decision last updated: 13 December 2023

Medium Neutral Citation:	Kvelde v State of New South Wales [2023] NSWSC 1560
Hearing dates:	10 May 2023
Date of orders:	13 December 2023
Decision date:	13 December 2023
Jurisdiction:	Common Law
Before:	Walton J
Decision:	(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. (2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. (3) The Summons filed 12 October 2022 is otherwise dismissed. (4) Each party should pay their own costs. (5) Liberty is granted to the parties to apply by writing to the Associate to Justice Walton within 21 days of these orders to vary the terms of the declarations and orders. (6) If possible, any exercise of the liberty in order (5) be dealt with on the papers. But in the event that either party wishes to have a hearing on the terms of the declarations and orders or question of costs, the parties should bring in Short Minutes of Order with an agreed programme for the disposition of the relevant issues.
Catchwords:	CONSTITUTIONAL LAW — Standing – whether plaintiffs have standing to challenge the validity of s 214A of the Crimes Act 1900 (NSW) – the plaintiffs’ have standing. CONSTITUTIONAL LAW — implied freedom of political communication – construction of impugned provisions – the nature of the burden - whether the implied freedom is burdened – whether there is an incremental effect by the impugned law on the implied freedom – whether burden inconsequential – burden found -– structured proportionality analysis –impugned provisions are legitimate in their purpose – suitable for purpose – lack of necessity – inadequacy in its balance - subsection 214A(1)(c) is invalid in part – standard use words as to proportionality not reasonable – subsection 214A(1)(d) is invalid. CRIMINAL LAW – protesters – validity of legislation – freedom of political communication – Crimes Act 1900 (NSW) - Crimes Amendment (Major Facilities) Regulation 2022 (NSW) – subsection 214A(1)(c) invalid in part – subsection 214A(1)(d) is invalid. ADMINISTRATIVE LAW — Validity of regulation – Roads Act1993 (NSW) - Roads and Crimes Legislation Amendment Act 2022 (NSW) - regulation is valid.
Legislation Cited:	Beverage Container Act 1975 (SA) Beverage Container Act Amendment Act 1986 (SA) Crimes Act 1900 (NSW), ss 195, 211, 213, 214A, 217, 428B, 578C(2), (7) Crimes Amendment (Major Facilities) Regulation 2022 (NSW) Crimes Regulation 2000 (NSW) Criminal Appeal Act1912 (NSW), s 5 Criminal Code (Tas), ss 122, 123 Electoral Funding Act 2018 (NSW), ss 29, 35 Forest Management Act 2013 (Tas) Human Rights (Sexual Conduct) Act 1994 (Cth) Interpretation Act 1987 (NSW), ss 23, 24, 31, 42 Judiciary Act 1903 (Cth), ss 39, 78A, 78B Police Offences Act 1890 (Vic), s 6 Protection of the Environment Operations Act 1997 (NSW), s 144 Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 2 Roads Act 1993 (NSW), ss 58, 59, 60 Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW), cl 48A Roads and Crimes Legislation Amendment Act 2022 (NSW) Roads Regulation 2018 (NSW) Summary Offences Act 1988 (NSW), ss 8 23, 24 The Constitution, ss 24, 68, 76(i), 77(iii), 128 Transport Administration Act 1988 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 1.22, 1.23, 1.24 Workplaces (Protection from Protesters) Act 2014 (Tas)
Cases Cited:	Al Mana Lifestyle Trading L.L.C. & OthersvUnited Fidelity Insurance Company PSC and Others [2023] EWCA Civ 61; [2023] All ER (D) 14 (Feb) Al-Kateb v Godwin (2004) 219 CLR; [2004] HCA 37 Athavle v State of New South Wales (2021) 290 FCR 406; [2021] FCA 1075 Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 Auburn Municipal Council v Ivanoff (1964) 10 LGRA 258 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 Beatty v Gillbanks (1882) 9 QBD 308; [1881-5] All ER Rep 559 Boyce v Paddington Borough Council [1903] 1 Ch 109 Breen v Sneddon (1961) 106 CLR 406; [1961] HCA 67 Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 22; (2022) 110 NSWLR 145 Cam & Sons v Chief Secretary (1951) 84 CLR 442; [1951] HCA 59 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1 CB v Director of Public Prosecutions NSW (2013) A Crim R 522; [2013] NSWSC 618 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 City of Brunswick v Stewart (1941) 65 CLR 88; [1941] HCA 7 Clements v Bull (1953) 88 CLR 572; [1953] HCA 61 Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19 Commission of Police v Rintoul [2003] NSWSC 662 Commissioner of Police v Allen (1984) 14 A Crim R Commissioner of Police v Jackson [2015] NSWSC 96 Commissioner of Police v Vranjkovic (Unreported, NSWSC, 28 October 1980) Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579; [1921] HCA 44 Cordingley v Cheeseborough (1862) 4 De GF & J 379; (1862) 45 ER 1230 Croome v State of Tasmania (1997) 191 CLR 119; [1997] HCA 5 Crowe v Graham (1968) 121 CLR 375; [1968] HCA 6 Director of Public Prosecutions v Belani (2005) 64 NSWLR 319; [2005] NSWSC 1013 Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; [1990] HCA 5 Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63 Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174 Environment Protection Authority v N (1992) 26 NSWLR 352; (1992) 59 A Crim R 408 Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23 Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31 Fitzgerald v Montoya (1989) 16 NSWLR 164; (1989) 40 A Crim R 105 Fletcher v Harris [2005] ACTSC 27 Gas Fuel Corporation (Vic) v Comptroller of Stamps [1964] VR 617 Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11 Haywood v Mumford (1908) 7 CLR 133; [1908] HCA 62 He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 Henshaw v Mark (1997) 95 A Crim R 115 Hubbard v Pitt [1976] QB 142 Hussein v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2006] FCA 286 Jobling v Blacktown Municipal Council (1969) 17 LGRA 92; [1969] 1 NSWLR 129 Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Lendlease Building Contractors Pty Limited v Australian Budling and Constructions Commissioner (No 2) (2022) 314 IR 378; [2022] FCA 192 Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490; [2021] HCA 18 Lygon Nominees Pty Ltd v Commissioner of State Revenue (2007) 23 VR 474; [2007] VSCA 140 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 McMillan v Barclay Curle & Co Ltd (1899) 2 F(Ct of Sess) 91 Melbourne Corp v Barry (1922) 31 CLR 174; [1922] HCA 56 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53 Meriton Units Pty Ltd v Rule (Unreported, NSWSC, Needham J, 18 April 1983 at 7) Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1; [2006] HCA 52 Nguyen v The Director of Public Prosecutions (NSW) [2023] NSWCCA 42 Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 NSW Commissioner of Police v Bainbridge [2007] NSWSC 1015; (2007) 175 A Crim R 226 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 Pharmaceutical Society of Great Britain v Dickson [1970] AC 403; [1968] 2 All ER 686 Purdon v Dittmar [1972] 1 NSWLR 94 R v A2 (2019) 269 CLR 507; [2019] HCA 35 R v Edwards [1975] QB 27 R v Goreng-Goreng (2008) 220 FLR 21; [2008] ACTSC 74 R v Uddin [2017] EWCA Crim 1072; [2018] 1 All ER 1073 Re Judiciary and Navigation Acts (1921) 29 CLR 257; [1921] HCA 20 Robinson v Western Australia (1977) 138 CLR 283; [1977] HCA 46 Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45 Ruddick v Commonwealth (2020) 96 ALJR 367; [2022] HCA 9 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 Schubert v Lee (1946) 71 CLR 589; [1946] HCA 28 Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4 South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3 South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63; [2003] FCAFC 237 Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 Tunney v Keehn; Ex parteKeehn [1977] Qd R 6 Tyne Keelmen v Davison (1864) 16 CBNS 612 Unions New South Wales v New South Wales (2023) 407 ALJR 277; [2023] HCA 4 Unions New South Wales v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 Watson v Trenerry (1998) 122 NTR 1; (1998) 100 A Crim R 408 Will v Brighton (2020) 104 NSWLR 170: [2020] NSWCA 335 Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56 Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2
Texts Cited:	Delegated Legislation in Australia (2017) Introduction to the Study of the Law of the Constitution, 8th ed (1915) Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) 778 New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 30 March 2022 Roads and Crimes Legislation Amendment Bill 2022 (NSW) Shorter Oxford English Dictionary (6th ed.) Shorter Oxford University Press
Category:	Principal judgment
Parties:	Helen Kvelde (First Plaintiff) Dominique Jacobs (Second Plaintiff) State of New South Wales (First Defendant)
Representation:	Counsel: S Free SC (Plaintiffs) F Graham (Plaintiffs) E Jones (Plaintiffs) D Farinha (Plaintiffs) M G Sexton SC (Defendant) M O Pulsford (Defendant) Solicitors: Environmental Defenders Office Ltd (Plaintiffs) Crown Solicitor’s Office (Defendant)
File Number(s):	2022/304510