Kvelde v State of New South Wales

The case of Kvelde v State of New South Wales was heard by the High Court of Australia, where the plaintiffs sought to challenge the constitutional validity of certain provisions of the Crimes Amendment (Major Facilities) Regulation 2022 (NSW), specifically subsections 214A(1)(c) and 214A(1)(d) of the Crimes Act 1900 (NSW). The plaintiffs argued that these provisions unconstitutionally burdened the implied freedom of political communication, a right protected by the Australian Constitution. The State of New South Wales defended the constitutionality of these provisions, asserting their necessity for the protection of major facilities and public order.

The primary legal issue before the Court was whether the impugned provisions of the Regulation unconstitutionally burdened the implied freedom of political communication. This involved determining whether the provisions were suitable and adapted to achieve their legitimate aims, and whether they were proportionate in their impact on the freedom of political communication. The Court also had to consider whether the provisions were necessary and balanced in their effect on the freedom, and whether they could be saved under the doctrine of severability.

The Court found that the plaintiffs had standing to challenge the provisions, as they were directly affected by the restrictions imposed on their ability to protest. The Court concluded that subsection 214A(1)(c) was invalid in part, as the use of words such as "standard use" was not reasonable and therefore not suitable and adapted to achieve its legitimate aim. The Court further found that subsection 214A(1)(d) was invalid, as it imposed an incremental effect on the implied freedom of political communication, which was not inconsequential. The Court applied a structured proportionality analysis and found that the impugned provisions were legitimate in their purpose and suitable for their purpose, but lacked necessity and were inadequate in their balance. The Court did not find it necessary to consider the validity of the regulation under the Roads Act 1993 (NSW) as the provisions were found to be invalid under the Crimes Act 1900 (NSW).

The Court declared subsections 214A(1)(c) and 214A(1)(d) of the Crimes Amendment (Major Facilities) Regulation 2022 (NSW) invalid to the extent that they burdened the implied freedom of political communication. The Court did not make any orders regarding the validity of the regulation under the Roads Act 1993 (NSW).