Lees v State of New South Wales

[2025] NSWSC 1209

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Lees v State of New South Wales [2025] NSWSC 1209

Hearing dates:

19 June 2025

Date of orders:

16 October 2025

Decision date:

16 October 2025

Jurisdiction:

Common Law

Before:

Mitchelmore J

Decision:

(1) Declare that s 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) impermissibly burdens the implied constitutional freedom of communication on government or political matters and is invalid.

(2)    Direct the parties to file and serve, within 14 days of today, agreed short minutes of order as to costs or, in lieu of agreement, the orders that each seeks accompanied by submissions not exceeding 5 pages in support, with any dispute as to costs to be determined on the papers.

Catchwords:

CONSTITUTIONAL LAW — implied freedom of communication on government or political matters — police power to give directions — where apparently genuine protest or demonstration, procession and organised assembly generally exempt from directions — exception for protests “in or near a place of worship” — extent of burden on political communication — test for assessing proportionality — where purpose is legitimate — where alternative approach would impose significantly lesser burden — provision invalid

Legislation Cited:

Crimes Amendment (Places of Worship) Act 2025 (NSW)

Crimes Act 1900 (NSW), ss 214A, 214B

Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), Sch 3 item 2

Interpretation Act 1987 (NSW), s 31

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 197, 198, 198A, 199, 200

Police Powers (Drug Premises) Act 2001 (NSW), Sch 4 item 2

Public Assemblies Act 1979 (NSW) (rep)

Road Transport Act 2013 (NSW), s 4

Summary Offences Act 1970 (NSW) (rep), s 46

Summary Offences Act 1988 (NSW), ss 3, 6, 22, 23, 24, 25

Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), Sch 3

Road Rules 2013 (NSW), cl 236

Crimes Amendment (Places of Worship) Bill 2025 (NSW)

International Covenant on Civil and Political Rights, art 18

Cases Cited:

Antaw v R; Kitson v R; Lee v R [2021] NSWDC 820

APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45

Babet v The Commonwealth [2025] HCA 21; 99 ALJR 883

Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43

Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242

Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224

Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40

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 23

Croome v Tasmania (1997) 191 CLR 119; [1997] HCA 5

Farm Transparency International Ltd v State of New South Wales (2022) 277 CLR 537; [2022] HCA 23

George v Rockett (1990) 170 CLR 104; [1990] HCA 26

Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900; [2020] NSWCA 160

International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49

Jobling v Blacktown Municipal Council [1969] 1 NSWR 129; 17 LGRA 92

Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46

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

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25

LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18

McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34

Meller v Low (2000) 48 NSWLR 517; [2000] NSWSC 75

Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4

North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41

Prior v Mole (2017) 261 CLR 265; [2017] HCA 10

Ravbar v The Commonwealth [2025] HCA 25; 99 ALJR 1000

Registrar of Births, Deaths and Marriages (NSW) v Norrie (2014) 250 CLR 490; [2014] HCA 11

Smith v Blanch [2025] NSWCA 188

Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35

Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58

Unions NSW v State of New South Wales (2023) 277 CLR 627; [2023] HCA 4

Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation (2010) 190 FCR 150; [2010] FCAFC 137

Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23; 99 ALJR 955

Texts Cited:

Oxford English Dictionary, online ed

Category:

Principal judgment

Parties:

Joshua Lees (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
C Lenehan SC / F Graham / T Wood (Plaintiff)
M G Sexton SC / J Davidson (Defendant)

Solicitors:
O’Brien Criminal and Civil Solicitors (Plaintiff)
NSW Crown Solicitor (Defendant)

File Number(s):

2025/103668

Publication restriction:

Nil

HEADNOTE

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

The plaintiff, Joshua Lees, who is currently one of the organisers of the Palestine Action Group, challenged the validity of s 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) on the basis that it impermissibly burdens the constitutionally implied freedom of political communication.

Section 200(5) is contained in Part 14 of LEPRA, which provides a regime by which police officers may give directions to persons in a public place. Section 197 of LEPRA relevantly empowers a police officer to give a direction if the officer believes on reasonable grounds that the person’s behaviour or presence is obstructing another person or persons or traffic, constitutes harassment or intimidation of another person or persons, or is causing or likely to cause fear to another person or persons. Section 198A permits directions to be given to a group of persons, and s 199 provides that it is an offence for a person persistently to fail to comply with a direction.

Section 200(2) of LEPRA precludes the giving of a direction to a person in relation to an apparently genuine demonstration or protest, a procession or an organised assembly, subject to the exceptions in ss 200(3)-(5). Section 200(5) provides that a direction may be given if the protest, demonstration, procession or assembly is not an authorised public assembly under Pt 4 of the Summary Offences Act 1988 (NSW) and is occurring in or near a place of worship; and it does not form part of an industrial dispute, is not occurring at or outside Parliament House or an office of a member of Parliament, and is not in accordance with the consent or authority of the Commissioner of Police or the person apparently in charge of the place of worship.

The proper construction of s 200(5) was central to the parties’ arguments on whether the provision impermissibly infringed the implied freedom. The plaintiff submitted that s 200(5), read with s 197 of LEPRA, would permit a police officer to direct protesters to move on or desist from protesting because they are “in or near a place of worship” (a geographically loose phrase), even if there is no basis to believe that the persons who are being obstructed, harassed, intimidated or caused to feel fear are entering or leaving the place of worship or attempting to do so. The defendant submitted that the operation of s 200(5), read with s 197, is more confined, applying only where protesters are in, or in close physical proximity to, a place of worship and where the conduct of protesters is having the prescribed effects on persons who are entering or leaving, or attempting to enter or leave, a place of worship.

Mitchelmore J, making a declaration that s 200(5) of LEPRA is invalid, held:

1. On its proper construction, s 200(5) of LEPRA applies where a demonstration, protest, procession or assembly is occurring “in or near a place of worship” in the sense that it is in close physical proximity to a building or other structure that is used for worship, and the other conditions of the provision are satisfied. The outer boundary of the compound phrase “in or near” is a question of fact and degree: at [80]-[93], [103].

2. Once the exception in s 200(5) is enlivened, s 197(1) of LEPRA operates in accordance with its terms, and a police officer may give a direction in relation to a demonstration or protest if the officer believes on reasonable grounds that the behaviour or presence of participants is having one of the impacts to which ss 197(1)(a)-(c) refer on other persons, whatever the purpose for which those persons are in or near the place at that time. The defendant’s construction, which sought to read s 200(5) together with s 197(1) so that the persons affected by the conduct to which s 197(1) refers would necessarily be limited to persons attending or leaving the place of worship, is not supported by the statutory language: at [94]-[103].

Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23; 99 ALJR 955; Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation (2010) 190 FCR 150; [2010] FCAFC 137; Registrar of Births, Deaths and Marriages (NSW) v Norrie (2014) 250 CLR 490; [2014] HCA 11; Kvelde v State of New South Wales [2023] NSWSC 1560; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, applied.

3. Where a law is alleged to burden the implied freedom of communication on government or political matters, the settled inquiry asks: (1) whether the law effectively burdens the freedom of political communication in its legal or practical operation; (2) if yes to (1), whether the purpose of the law is legitimate in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative and responsible government; and (3) if yes to (2), whether the law is reasonably appropriate and adapted to advance that purpose in a manner that is compatible with maintenance of the constitutionally prescribed system of government: at [8], [104].

Ravbar v The Commonwealth [2025] HCA 25; 99 ALJR 1000; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25; McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43, applied.

4. Section 200(5) of LEPRA effectively burdens the freedom of communication on government and political matters. It is directed at protest activity, removing a limitation on police giving directions in relation to an apparently genuine demonstration or protest, procession, or assembly, being established forms of political communication. The exception applies where there is close proximity between the demonstration or protest and the place of worship but is not otherwise confined including by reference to: persons who are entering or leaving, or attempting to enter or leave, the place of worship; the times at which such persons would likely be entering or leaving; or the subject matter of the demonstration or protest. The burden imposed goes further than the existing legislative and common law constraints: at [112]-[139].

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25; Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4, Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43; McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44; Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58; Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23; Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242; Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11; LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18; Farm Transparency International Ltd v State of New South Wales (2022) 277 CLR 537; [2022] HCA 23; Kvelde v State of New South Wales [2023] NSWSC 1560, applied.

5. The purpose of s 200(5) is to protect the rights and interests of persons who are trying to attend places of worship in order to express their faith: at [144], [146]. Addressing conduct that aims to intimidate or prevent persons from practising their faith by means of a move-on or other direction is clearly legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government: at [145].

McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43; Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58; LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18; Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40, applied.

6. Section 200(5) is not reasonably appropriate and adapted to its legitimate purpose. Adopting structured proportionality as a tool of analysis, and considering the three further issues that arise for consideration in that context:

1. the provision is suitable, in the sense that it has a rational connection to the purpose of the provision: at [150]-[151]; but

2. the provision is not necessary, in the sense that it goes beyond what is necessary to achieve its purpose: the construction of s 200(5) read with s 197 for which the defendant contended, by which the class of persons affected by the conduct to which s 197(1) refers is limited to those who are accessing or leaving, or attempting to access or leave, a place of worship, presented an obvious and compelling alternative that is equally practicable and would impose a lesser burden on the implied freedom of political communication. Section 214B of the Crimes Act 1900 (NSW), which was enacted at the same time, is limited in this way: at [152]-[157]; and

3. although not necessary to decide, the provision is not adequate in the balance between the importance of the purpose served by the measure and the extent of the restriction it imposes on the implied freedom: accepting the obvious importance of the purpose of s 200(5), the difficulty with the provision is that a protest or demonstration may, as a result of the provision, be the subject of a direction under s 197 in circumstances where the protest, although in close proximity to a place of worship (as is the case with common protest locations), is not directed at the place of worship, or where the behaviour or presence of participants in that place does not have one of more of the prescribed effects on persons who have a connection with the place of worship. The defendant’s submissions to the contrary rested on the narrower construction for which it contended: at [159]-[161].

Babet v The Commonwealth [2025] HCA 21; 99 ALJR 883; Ravbar v The Commonwealth [2025] HCA 25; 99 ALJR 1000; Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23; 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 State of New South Wales (2022) 277 CLR 537; [2022] HCA 23; Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43; Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242; Smith v Blanch [2025] NSWCA 188, applied.

Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35, considered.

JUDGMENT

1. MITCHELMORE J: By summons filed 17 March 2025, the plaintiff, Joshua Lees, seeks a declaration that s 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (to which I will refer below as LEPRA) impermissibly burdens the implied constitutional freedom of communication on government or political matters and is invalid.

2. Section 200 of LEPRA is contained in Part 14 of the Act, which is titled “Powers to give directions”. I will come to the detail of Part 14 shortly, but by way of introduction, s 197(1) of LEPRA empowers a police officer to give a direction to a person in a public place if the officer believes on reasonable grounds that the person’s behaviour or presence in the place is, relevantly: (a) obstructing another person or persons or traffic; or (b) constitutes harassment or intimidation of another person or persons; or (c) is causing or likely to cause fear to another person or persons (so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness). Section 198A(1) extends the power in s 197 so as to permit the giving of such a direction to persons comprising a group.

3. Section 200(2) of LEPRA limits the operation of Pt 14 by providing that a police officer is not authorised to give a direction in relation to an apparently genuine demonstration or protest, a procession, or an organised assembly. That legislative limitation is subject to exceptions in s 200(3), (4) and (5), each of which provides that if particular conditions are satisfied, a police officer “is not precluded” by s 200(2) from giving a direction.

4. Section 200(5), which is the subject of the present challenge, was enacted pursuant to the Crimes Amendment (Places of Worship) Act 2025 (NSW) (the Places of Worship Amendment Act) and provides as follows:

(5)   A police officer is not precluded from giving a direction in relation to a demonstration, protest, procession or assembly if—

(a)   the demonstration, protest, procession or assembly—

(i)   is not an authorised public assembly for the purposes of the Summary Offences Act 1988, Part 4 or is not being held substantially in accordance with an authorisation under that part, and

(ii)   is occurring in or near a place of worship, within the meaning of the Crimes Act 1900, section 214B, and

(b)   the demonstration, protest, procession or assembly—

(i)   does not form part of industrial action or an industrial dispute or campaign, and

(ii)   is not occurring at or outside Parliament House or an office of a member of Parliament, and

(iii)   is not in accordance with the consent or other authority of—

(A)   the Commissioner of Police, or

(B)   the person apparently in charge of the place of worship.

5. Section 200(5) of LEPRA was one of two primary legislative amendments in the Places of Worship Amendment Act. The second was a new offence provision in s 214B of the Crimes Act 1900 (NSW) (to which s 200(5) refers), the subject of which is certain types of conduct directed at persons accessing or leaving, or attempting to access or leave, a place of worship. The Attorney General described the amendments in the second reading speech as addressing “activities outside places of worship that aim to intimidate people trying to attend those places to express their faith, or that prevent people from practising their faith”. The provisions sought to ensure, in his words, that “people of all faiths are able to practise their religion … without fear of intimidation or harassment”: Legislative Assembly, Parliamentary Debates (Hansard), 11 February 2025, pp 24-5.

6. The plaintiff’s challenge to the validity of s 200(5) of LEPRA is not directed at the merits of that underlying purpose; as senior counsel for the plaintiff observed during the hearing, that purpose is, plainly, both legitimate and compelling. The focus of the plaintiff’s challenge is the legislative mechanism by which Parliament has sought to give effect to that purpose in s 200(5) of LEPRA. The plaintiff alleges that s 200(5) of LEPRA is invalid because it impermissibly burdens the implied freedom of communication on government or political matters.

7. The implied freedom, which operates as a limitation on legislative power, has been described as “essential to the maintenance of the system of representative and responsible government for which the Constitution provides” by ss 7, 24, 64 and 128: Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43 (“Brown”) at [88] (Kiefel CJ, Bell and Keane JJ). That system “requires that electors be able to exercise a free and informed choice when choosing their representatives, and, for them to be able to do so, there must be a free flow of communication within the federation”: Brown at [312] (Gordon J, citing Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58 (“Unions NSW (2013)”) at [27], [104]). However, as Gordon J observed in Brown at [313], the freedom that the Constitution protects is not absolute:

“The implied freedom does not protect all forms of political communication at all times and in all circumstances. And the freedom is not freedom from all regulation or restraint. Because the freedom exists only as an incident of the system of representative and responsible government provided for by the Constitution, the freedom limits legislative and executive power only to the extent necessary for the effective operation of that system.”

8. The joint judgment in McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 (“McCloy”) at [2] stated that the question whether a law exceeds the implied limitation on legislative power depends on the answers to three questions, reflecting those propounded in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 (“Lange”) and modified in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39. As formulated in McCloy at [2], and with the modifications recognised in Brown at [102]-[104], those questions are:

1. Does the impugned law effectively burden the freedom in its terms, operation or effect?

2. If ‘yes’ to question 1, 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?

3. If ‘yes’ to question 2, 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?

9. The first question entails considering in some detail the proper construction of s 200(5) of LEPRA and its operation and effect, considered in its statutory context: Brown at [61], citing Unions NSW (2013) at [35]-[36]. The plaintiff submitted that s 200(5), read with s 197 of LEPRA, would permit a police officer to direct protesters to move on or desist from protesting because they are near a place of worship, even if there is no basis to believe that the persons who are being obstructed, harassed, intimidated or caused to feel fear are entering or leaving the place of worship or attempting to do so. The defendant, the State of New South Wales, submitted that the operation of s 200(5), read with s 197, is much more confined, applying only where the conduct of protesters is having the prescribed effects on persons who are entering or leaving, or attempting to enter or leave, a place of worship.

10. Determination of this issue is central to the case, as the arguments that the parties advanced on the constitutional inquiry rested on their competing views of the operation and effect of the provision. By way of overview:

1. On the question of burden, both parties accepted that s 200(5) of LEPRA effectively burdens the implied freedom of political communication. However, they were divided as to the nature and extent of that burden, consistently with the different constructions of the provision that they respectively advanced. The plaintiff contended that the provision imposes a direct, substantial and discriminatory burden on the implied freedom, whereas the defendant submitted that the burden is slight.

2. On the question of purpose, the defendant submitted that the purpose of s 200(5) is to protect members of religious communities from physical obstruction or physical or verbal harassment, intimidation or incitement to fear when accessing or leaving, or attempting to access or leave, a place of worship. The plaintiff agreed, as a fallback position, that this purpose was legitimate in the sense of being compatible with the maintenance of the constitutionally prescribed system of government. However, his primary position was that on its proper construction, the purpose of s 200(5) is not legitimate, relying by analogy upon the analysis in Unions NSW (2013).

3. As to whether s 200(5) is reasonably appropriate and adapted to advance the identified purpose, the parties disagreed about the implications of the recent decisions of the High Court in Babet v The Commonwealth [2025] HCA 21; 99 ALJR 883 (“Babet”) and Ravbar v The Commonwealth [2025] HCA 25; 99 ALJR 1000 (“Ravbar”) for the continuing applicability to this question of what was described in McCloy as structured proportionality. Ultimately, however, the plaintiff submitted that even applying the structured proportionality analysis, s 200(5), properly construed, was not reasonably appropriate and adapted to the identified purpose. The defendant submitted that, on the basis of its narrower construction of s 200(5), the provision satisfied this inquiry.

11. For the reasons set out below, I consider that the condition in s 200(5)(a)(ii) of LEPRA, that an apparently genuine protest or demonstration, procession or organised assembly is occurring “in or near a place of worship”, is more geographically confined than the plaintiff submitted. However, I do not accept the defendant’s submission that, provided the conditions in s 200(5) are satisfied, the subsection narrows the scope of the power in s 197(1) of LEPRA so that it may only be exercised where a police officer believes on reasonable grounds that the persons who are obstructed, intimidated, harassed or caused fear are persons entering or leaving, or attempting to enter or leave, the place of worship. Properly construed, s 200(5) effectively burdens the implied freedom of political communication, for a purpose that is clearly compatible with the maintenance of the constitutionally prescribed system of government. However, the provision is not reasonably appropriate and adapted to advance that legitimate purpose. It follows that s 200(5) of LEPRA is invalid.

The plaintiff’s standing

12. The plaintiff’s standing to bring the present challenge was not ultimately in issue. As at the date of the hearing, neither the plaintiff nor any other person had been subject to a direction as a result of the exception in s 200(5) of LEPRA. Nonetheless, the evidence disclosed that the plaintiff, who is currently one of the organisers of the Palestine Action Group, has long been involved in protest actions, including organised marches and gatherings in public places. It is also apparent from his evidence that the plaintiff intends to undertake more protest action, including in places where the police may exercise the power to give a direction under s 197 of LEPRA, relying on the exception in s 200(5). Locations in which the plaintiff has protested in the past are near places of worship, including Sydney’s Town Hall Square (near St Andrew’s Cathedral) and Hyde Park North (near St Mary’s Cathedral and St James’ Church).

13. A “matter” may arise where a person has a “sufficient interest in the subject” even where the impugned law has not been enforced against them: Croome v Tasmania (1997) 191 CLR 119 at 125-6 (Brennan CJ, Dawson and Toohey JJ), 138-40 (Gaudron, McHugh and Gummow JJ); [1997] HCA 5. In circumstances where the plaintiff has a demonstrated history of conduct of the kind which may be affected by s 200(5) of LEPRA, and the evidence suggests that he will continue to undertake conduct of this kind in the future, his interest goes beyond being merely hypothetical: Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 at [96] (Hayne J), at [190] (Crennan, Kiefel, Gageler and Keane JJ); Unions NSW v State of New South Wales (2023) 277 CLR 627; [2023] HCA 4 at [22] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ). I am satisfied that the plaintiff has a sufficient interest in the relief sought and that the dispute amounts to a matter for the purposes of Chapter III of the Constitution.

The evidence and relevant facts

14. The parties read their respective evidence without objection, with a view to making submissions as to weight.

The plaintiff’s evidence

15. The plaintiff read the following affidavits from individuals about their respective engagement in protest activity of various forms in and around Sydney, and their concerns about the impact of s 200(5) of LEPRA on their future engagement (based on their respective understandings of its operation):

1. two affidavits of the plaintiff respectively affirmed 14 March 2025 (Lees first affidavit) and 28 April 2025 (Lees second affidavit);

2. an affidavit of April Holcombe, affirmed 28 April 2025;

3. an affidavit of Michelle Anna Berkon, affirmed 28 April 2025;

4. an affidavit of Padraic Gibson, affirmed 28 April 2025;

5. an affidavit of Peter Murphy, affirmed 28 April 2025;

6. an affidavit of Theresa Ormerod, sworn 28 April 2025; and

7. an affidavit of Timothy Roberts, sworn 28 April 2025.

16. The plaintiff’s evidence established the following facts.

17. Organisers of protests seek to hold them in places that are busy and visible, so that lots of people see the protest (Lees first affidavit [30]). In the Sydney Central Business District (CBD), common locations used for such activities include Town Hall Square, Hyde Park North, Martin Place, Belmore Park and Queens Square (Lees first affidavit [29]). The plaintiff (Lees first affidavit at [33]-[42]), Ms Ormerod (at [6]), Ms Berkon (at [5]-[7]), Mr Gibson (at [7]-[8], [12], [21]-[30], [32]-[38]), Ms Holcombe (at [9], [11]-[12]) and Mr Murphy (at [7]) each gave evidence of attending protests in locations such as Town Hall Square and Hyde Park. According to the plaintiff, Town Hall Square and Hyde Park North are most frequently and ideally used by the Palestine Action Group for protests including because of their size, visibility and proximity to public transport for participants (Lees first affidavit at [30]).

18. The media articles that the plaintiff tendered show various rallies and protests in public places in Sydney attended by many thousands of people, including the Vietnam War Moratorium rally at Sydney Town Hall on 8 May 1970 (estimated 20,000 attendees); a rally in Hyde Park and surrounding streets on 16 February 2003 to protest against the war in Iraq (estimated 200,000-300,000 attendees); a rally commencing at the Sydney Town Hall and proceeding to the harbour on 10 September 2017 in support of marriage equality (estimated 30,000 attendees); a rally against climate change held at Sydney Town Hall on 15 March 2019 (estimated thousands of school student attendees); and a rally at Sydney Town Hall on 26 January 2022 to recognise the date as a day of survival and mourning for Indigenous people (estimated thousands of attendees). The plaintiff gave evidence that where protests involve crowds of this size, participants can spill into the surrounding streets (Lees first affidavit at [40]).

19. The evidence demonstrated a locational overlap between places where people commonly seek to protest and places of worship. The plaintiff tendered a map of the Sydney CBD which marked out a 150-metre radius around places of worship, emphasising that protest locations such as Town Hall Square (St Andrew’s Cathedral) and Hyde Park North (St Mary’s Cathedral, St James’ Church and the Great Synagogue) would fall within such a radius. As I explain below, I do not consider that such a radius is reflective of the scope of operation of s 200(5) on its proper construction. Nonetheless, the locational overlap is relevant, with the distance between common protest locations and places of worship being well less than 150 metres.

20. Protests may also involve a march, the route of which may take protesters near places of worship. The plaintiff gave evidence in his first affidavit about “a common march route” for recent protests in which he has been involved in the Sydney CBD (at [49]):

“A common march route through the CBD commences in Hyde Park North (nearby St Mary’s Cathedral and St James’ Church), marching down St James Road (nearby St James’ Church), Elizabeth Street, right onto Market Street, left onto York Street, left onto Druitt Street, left on Pitt Street (near Pitt Street Uniting Church and past the Wesley Mission Methodist Church) and right onto Market Street and back into Hyde Park at the corner of Elizabeth and Market Street (nearby the Great Synagogue).”

21. Protests may also be more site specific, with protesters gathering outside or seeking to march near a venue or location where an event is taking place that is associated with a cause or on a subject that the protesters oppose. By way of example:

1. Ms Holcombe gave evidence of attending a protests in 2017 (outside St Barnabas’, an Anglican Church in Broadway) and in 2021 (outside New Life Church in Dee Why) when meetings of the Australian Christian Lobby were occurring. She also gave evidence of organising an assembly in Hyde Park North on the day of Cardinal Pell’s funeral in 2023, with a march on College Street next to the forecourt of St Mary’s Cathedral, to draw attention to victims of child sexual abuse and oppose conservative politicians who were attending the funeral (Holcombe affidavit at [14], [26]).

2. Ms Berkon and Mr Gibson gave evidence of attending a protest with some 40 to 60 people in December 2024 across the road from the rear entrance to the Great Synagogue to protest against an event being held there in relation to the Israel Institute of Technology on the basis that the group believed the event featured an Israeli Defence Force speaker. Ms Berkon also gave evidence of organising and participating in a protest outside Emanuel Synagogue in February 2025 at a time when the then-leader of the federal opposition, Peter Dutton MP, was speaking at the Synagogue (Berkon affidavit at [5], [12(c)]; Gibson affidavit at [32]).

3. Mr Gibson and Mr Murphy gave evidence of attending rallies outside NSW Parliament House and, in Mr Gibson’s case, corporate offices in the city (Gibson affidavit at [24]; Murphy affidavit at [7]).

4. Ms Ormerod gave evidence of organising assemblies of small groups outside the offices of MPs or places of worship, for sit-ins or pray-ins advocating for an increased government response to climate change. Where an assembly of that kind was outside a place of worship, the consent of the congregation and the religious Minister was obtained before the event (Ormerod affidavit at [4], [9]).

22. Organisers of planned and/or regular protests will often submit to police what is known as a Form 1, the standard document provided for a protest organiser to apply for a public assembly to become “authorised” for the purposes of Part 4 of the Summary Offences Act 1988 (NSW) (Lees first affidavit at [19], Berkon affidavit at [12(b)], Gibson affidavit at [14]). Protests may also take place at short notice, usually in response to a particular event, which the plaintiff and others referred to as snap or emergency rallies (Lees first affidavit at [23]-[24]). Rallies of this nature tend to be smaller (although not necessarily so) and sometimes involve marching around the block or on the footpath — if that can be negotiated with the police at the event — and may obstruct pedestrians and vehicles in the area where the group is gathered and/or marching (Lees first affidavit at [26]).

23. Demonstrations, protests, processions and organised assemblies have the potential to obstruct other persons in the vicinity, including by virtue of the number of participants in the demonstration or protest occupying the public place. The plaintiff submitted that the Court could take judicial notice of this proposition. Nonetheless, in addition to the media articles to which I have referred, a number of the individuals who gave evidence of their participation in protest activity referred to their activities creating some obstruction for other persons in the area at the time because a large group was assembled (see, for example, the affidavit of Mr Gibson at [24]-[25]). The plaintiff gave evidence of various marches and rallies between October 2023 and February 2025 in relation to the conflict in Gaza, routinely attended, on his estimate, by between 1,000 and 10,000 people.

24. The evidence also supported the potential for demonstrations or protests to involve loud vocal objection being made to an event or proposed action and holding up flags and banners, some of which might display provocative content. As Mr Gibson, who has been organising demonstrations since 2003 and has attended hundreds of protests, explained in his affidavit at [47]:

“The nature of protest is that you are vocally objecting to an event that is taking place and often expressing vigorous opposition to people on the other side of a political dispute. There are often political slogans shouted at people going into a venue or event at which you are protesting. Sometimes people can scream vigorously to express objection to the political forces that might be gathering there. It’s the nature of the protest.”

The defendant’s evidence

25. The defendant read an affidavit of George Charles Farrugia, solicitor, sworn 9 May 2025, which annexed:

1. media reports Mr Farrugia found in response to Google searches for protest activities near the Great Synagogue in Sydney on 14 July 2024 and 4 December 2024 and protests held near synagogues in Melbourne on 10 November 2023 and 25 November 2024 (at [7], [9], [10], [14] and [8] (following [14])); and

2. the terms of reference for a current Legislative Council inquiry into antisemitism in New South Wales and a number of written submissions made to that inquiry in April 2025.

26. The defendant also read:

1. an affidavit of Assistant Commissioner Peter McKenna, affirmed 9 May 2025, which outlined the process concerning public assemblies in Part 4 of the Summary Offences Act and provided evidence about the number of public assemblies dealt with under that Part in 2023 and 2024; and

2. an affidavit of Kate Meagher, Deputy Secretary, Delivery and Engagement in the New South Wales Premier’s Department, affirmed 13 May 2025, which annexed four “Situation Reports” respectively dated 24 January 2025, 31 January 2025, 7 February 2025 and 14 February 2025. The purpose of the particular Situation Reports was to collate cross-agency information on the New South Wales Government’s response to antisemitism and antisemitic violence.

27. For completeness, the defendant also tendered extrinsic material in relation to the Places of Worship Amendment Act, namely, the second reading speech, the explanatory note and a Statement of Public Interest tabled in the Legislative Council on 19 February 2025.

28. In his affidavit, Assistant Commissioner McKenna deposed to the common procedures of the New South Wales Police Force (NSWPF) when given notice of a public assembly: at [9]-[24]. He also gave evidence about the number of public assemblies in which police were involved in the Sydney City Police Area Command (PAC) in 2023 and 2024, which established the following:

1. In 2023, the NSWPF was involved in 909 public assemblies in the Sydney City PAC, of which 804 were the subject of a Form 1 lodged under the Summary Offences Act. For 652 of these assemblies, notice was given more than seven days in advance of the proposed date; and for 152, notice was given less than seven days in advance. In only one case did the Commissioner apply to the Supreme Court for a prohibition order under s 25 of the Summary Offences Act in respect of a public assembly that was proposed to be held within the Central Metropolitan Region: at [26].

2. In 2024, the NSWPF was involved in 970 public assemblies in the Sydney City PAC. A Form 1 was submitted for 825 of those assemblies, of which 718 were submitted more than seven days before the proposed date and 107 less than seven days before the proposed date. The Commissioner applied for an order under s 25 in relation to two public assemblies proposed to be held within the Central Metropolitan Region: at [27].

29. The defendant’s other evidence was focused upon events in the community involving antisemitism and antisemitic violence, in particular in the months leading up to the introduction of legislation that included the Places of Worship Amendment Act. Events to which the evidence referred included the fire-bombing of a synagogue in Melbourne in December 2024, vandalism and destruction of businesses and property in the eastern suburbs of Sydney in December 2024 and January 2025, vandalism of synagogues in Allawah and Newtown, and vandalism and damage to residences and/or facilities proximate to or associated with synagogues or Jewish educational institutions. The Situation Reports annexed to Ms Meagher’s affidavit detailed the cross-agency response to these events in January and February 2025.

29. As I noted above, Mr Farrugia’s affidavit referred also to two specific protests proximate to the Great Synagogue in Sydney in 2024. The first occurred on Sunday 14 July 2024 and involved protestors holding a large banner across the front entrance of the Great Synagogue. The action received widespread condemnation at the time, including from the New South Wales Jewish Board of Deputies, the Executive Council of Australian Jewry, the Jewish Council of Australia and the Palestine Action Group.

30. The second protest occurred on Wednesday 4 December 2024, and was also referred to in the evidence of Ms Berkon and Mr Gibson (see [21] above). This protest occurred across the road from the rear entrance to the Great Synagogue and was in relation to an event being held in the Synagogue that evening to commemorate the 100^th anniversary of the Israel Institute of Technology. Media reports recorded that the Great Synagogue was locked down in response to the protest.

31. The defendant also tendered a number of media releases from the Premier and other Ministers, dated 8 December 2024, 6 February 2025 and 11 February 2025, on the subject of protecting places of worship. The 8 December 2024 joint media release of the Premier, the Attorney General and the Minister for Multiculturalism announced consideration of reforms “to laws regulating protests outside religious institutions and places of worship that aim to intimidate or prevent religious people from practicing [sic] their faith in NSW, to prevent scenes of division seen outside the Great Synagogue of last week”. The release stated:

“…Everyone has a right to gather at mosques, churches, synagogues, and places of worship to participate in their faith free from intimidation.

And while everyone has a right to protest peacefully in NSW, the right to peaceful assembly does not permit or excuse the intimidation or vilification of people based on their faith or religion.

There have been too many instances across the country in recent times, where places of worship have been the target of protests.

Protesting outside places of religious worship is inflammatory and provocative.

Freedom of religious expression is critical to what makes Australia and NSW a free and democratic society. …”

33. The joint media release of 6 February 2025 announced legislative reforms including those contained in the Places of Worship Amendment Act, with the media release of 11 February 2025 coinciding with the introduction of the Crimes Amendment (Places of Worship) Bill 2025 (NSW) into Parliament. In the second reading speech to the Bill, the Attorney General introduced the amendments as follows (Legislative Assembly, Parliamentary Debates (Hansard), 11 February 2025, p 24-5):

“On 8 December 2024 our Government announced that we would consider law reform to address activities outside places of worship that aim to intimidate people trying to attend those places to express their faith, or that prevent people from practising their faith in New South Wales. Recently, we have seen disgraceful acts targeting synagogues in New South Wales and other Australian jurisdictions, including an arson attack on the Adass Israel Synagogue of Melbourne on 6 December 2024 and the vandalism of synagogues in Newtown and Allawah, along with an alleged attempt to set fire to Newtown Synagogue in January of this year.

Targeting places where people congregate to share and express their faith is unacceptable, and the overwhelming majority of people in New South Wales reject this type of appalling behaviour. There is a clear need to ensure that people of all faiths are able to practise their religion freely and without fear of intimidation or harassment. The Crimes Amendment (Places of Worship) Bill 2025 will amend the Crimes Act 1900 to create two new offences that capture intentional acts that seek to impede people from accessing or leaving a place of worship, as well as conduct that intimidates, harasses or threatens people who are attempting to access or leave a place of worship. Both offences will carry a maximum penalty of a fine of up to $22,000, imprisonment for two years, or both.

The bill also amends the Law Enforcement (Powers and Responsibilities) Act 2002 to create an exception to existing limitations on the exercise of ‘move on’ powers by New South Wales police officers, so that such powers may be exercised in relation to demonstrations, protests, processions or assemblies outside places of worship in appropriate circumstances. I stress that this bill will not prohibit or restrict lawful, peaceful protests outside places of worship. Our Government recognises the need to introduce carefully thought out and balanced legislation, particularly when that legislation sits at the intersection of key civil and political rights under Australian law and international human rights law.”

Background to the enactment of Part 14 of LEPRA

34. Specific provisions permitting police to give directions in public places of the kind which Pt 14 of LEPRA authorises were first enacted in 1998, as part of the Summary Offences Act. The Summary Offences Act regulates, among other things, the conduct of persons in a “public place”, which is defined in s 3:

public place means—

(a) a place (whether or not covered by water), or

(b) a part of premises,

that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.

35. The Summary Offences Act creates a series of offences in relation to the conduct of a person in or in the vicinity of a public place. Relevantly, s 6, titled “Obstructing traffic”, makes it an offence for a person, without reasonable excuse, to “wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place”.

36. Part 4 of the Summary Offences Act, titled “Public Assemblies”, substantially replicates the regime for authorising public assemblies for which the Public Assemblies Act 1979 (NSW) (rep) formerly made provision. The provisions of the Public Assemblies Act themselves replaced provisions in the Summary Offences Act 1970 (NSW) (rep). The term “public assembly” is defined in s 22 for the purposes of Pt 4 to mean “an assembly held in a public place and includes a procession so held”, while “public place” is defined for the purposes of the Part to mean “a public road, public reserve or other place which the public are entitled to use”.

37. Section 23 makes provision for a public assembly to be an authorised public assembly for the purposes of Pt 4. A public assembly is so authorised if an organiser of a public assembly has applied by notice to the Commissioner of Police for authorisation (the notice is to include certain particulars: see s 23(1)(a)-(e)) and the Commissioner has notified the organiser that the Commissioner does not oppose the holding of the public assembly, or (s 23(1)(f)):

(i) if the notice was served on the Commissioner at least 7 days before the date specified in the notice as the date on which it is proposed to hold the public assembly—the holding of the public assembly is not prohibited by a Court under section 25(1), or

(ii)   if the notice was served on the Commissioner less than 7 days before that date—the holding of the public assembly is authorised by a Court under section 26.

38. The statutory scheme in Pt 4 of the Summary Offences Act endeavours to accommodate the interests of both public safety and freedom of speech through a process of consultation and negotiation: Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900; [2020] NSWCA 160 at [7]. The scheme encourages organisers of public assemblies to notify and cooperate with police by providing the additional legal protections in s 24 in the event that an assembly is authorised and conducted substantially in accordance with the authorisation.

39. However, as the plaintiff submitted, and the defendant accepted, there is no requirement for a protest organiser to seek authorisation under Pt 4 of the Summary Offences Act. If a public assembly is authorised and is held substantially in accordance with the particulars furnished on, or otherwise amended by agreement with, the Commissioner, a person “is not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place”: s 24.

40. If notice is given more than 7 days in advance of the proposed assembly or procession, and the Commissioner successfully applies for a prohibition order under s 25(1), such an order “does precisely what the terms of the order suggest, namely to prohibit the holding of the proposed public assembly”: Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224 (“Naser”) at [16] (Bell CJ, Harrison CJ at CL, Free JA). The effect of such an order is that participants may be in contempt of court if they have knowledge of the order and engage in the prohibited protest activity: Naser at [11], [14].

41. The parties in this matter did not advance submissions on the basis of what was decided in Naser as it postdated the submissions in and hearing of this matter. Nonetheless, the Court of Appeal’s explanation of the nature of the decision facing protest organisers as a strategic or evaluative one, requiring organisers to balance the risks and benefits of seeking authorisation (at [15]), is consistent with the point the plaintiff made and to which I have already referred, namely that authorisation is not an essential precondition to the holding of a protest.

The statutory power conferred on police officers to give directions

42. The provisions conferring on police officers the power to give directions was inserted into the Summary Offences Act by the Crimes Legislation (Police and Public Safety) Act 1998 (NSW). In the second reading speech, the then–Police Minister described the provisions as aimed at enabling police to “control antisocial behaviour in public places”, and “disperse persons before a situation gets out of hand”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 April 1998 at 3970. Part 5 of the Summary Offences Act was titled “Police powers for public protection in public places and schools” and contained two provisions. As enacted, 28F(1)-(3) relevantly provided as follows:

28F Power to give reasonable directions in public places

(1)    A police officer may give a direction to a person in a public place if the police officer has reasonable grounds to believe that the person’s behaviour or presence in the place (referred to in this section as relevant conduct):

(a)    is obstructing another person or persons or traffic, or

(b)    constitutes harassment or intimidation of another person or persons, or

(c)    is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness.

(2)    The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in.

(3)    Such a direction must be reasonable in the circumstances for the purpose of reducing or eliminating the obstruction, harassment, intimidation or fear. …

43. Section 28F(6) created an offence for a person, without reasonable excuse, to fail or refuse to comply with the second of two directions given by the officer (pursuant to s 28F(5)), provided it was also established “that the person persisted, after the direction concerned was made, to engage in the relevant conduct” (s 28F(7)). The Minister observed in the second reading speech that the key purpose of s 28F was “not to lock people up”, and that the offence was included “to give police a clear power to give lawful directions in the prescribed circumstances”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 April 1998 at 3970-3971.

44. The power in s 28F of the Summary Offences Act was limited by s 28G, which provided:

28G Limitation on exercise of police powers

This Division does not authorise a police officer to give directions in relation to:

(a)   an industrial dispute, or

(b)    an apparently genuine demonstration or protest, or

(c)    a procession, or

(d)    an organised assembly.

45. Consistently with there being no requirement for a protest organiser to seek authorisation under Pt 4 of the Act, the carve-out in s 28G was not limited by reference to whether or not the demonstration or protest, procession or assembly was authorised under that Part.

46. The carve-out of protest activity was consistent with legislative amendments to the authorisation regime when the Summary Offences Act 1970 was repealed and replaced by a three Acts, including, relevantly, the Public Assemblies Act. There was a provision in the Summary Offences Act 1970 that made it an offence to participate in an unauthorised procession following a request from a police officer to cease participating (s 46). That provision was not re-enacted in the Public Assemblies Act. In the second reading speech, the Minister described the extent of the right to lobby or protest by way of assembly and/or procession in New South Wales as “far from adequate”. The Minister further stated that “[a]n essential part of the democratic process must be the existence of a reasonable opportunity for individuals and minority groups to bring their views to the attention of the general public”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1979 at 4920-4921.

Part 14 of LEPRA

47. The long title of LEPRA describes it as: “An Act to consolidate and restate the law relating to police and other law enforcement officers’ powers and responsibilities; to set out the safeguards applicable in respect of persons being investigated for offences; to repeal certain Acts and to consequentially amend other Acts; and for other purposes”. Part of the consolidation to which the long title referred included the transfer of the provisions in Pt 5 of the Summary Offences Act into LEPRA and the consequential repeal of that Part.

48. The provisions of Pt 14 of LEPRA adopt a broadly similar structure to the repealed Pt 5 of the Summary Offences Act, first conferring and then conditioning the power to give directions and creating an offence provision; and then imposing limits on the application of the Part. Part 15 of LEPRA makes provision for warnings and applies to the exercise of a number of police powers, including the power to give a direction: see s 201(1)(f). The parties did not refer to any particular provisions of Pt 15 and no more need be said about it.

The power to give directions: s 197

49. Section 197 of LEPRA confers the general power on a police officer to give a direction to a person in a public place:

197 Directions generally relating to public places

(1)   A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as relevant conduct)—

(a)   is obstructing another person or persons or traffic, or

(b)   constitutes harassment or intimidation of another person or persons, or

(c)    is causing or is likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or

(d)   is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person to unlawfully supply, any prohibited drug, or

(e)   is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.

(2)   A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of—

(a)   reducing or eliminating the obstruction, harassment, intimidation or fear, or

(b)   stopping the supply, or soliciting to supply, of the prohibited drug, or

(c)   stopping the obtaining, procuring or purchasing of the prohibited drug.

(3)   The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in.

(4)   For the purposes of subsection (1)(c), no person of reasonable firmness need actually be, or be likely to be, present at the scene.

50. The power to give a direction to a person in s 197(1) of LEPRA replicates with minor amendment what was formerly s 28F(1) of the Summary Offences Act. I note for completeness that between its enactment and repeal, s 28F(1) was amended to include what is now s 197(1)(e)-(f), with s 28F(3) consequentially amended: Police Powers (Drug Premises) Act 2001 (NSW), Sch 4 item 2.

51. The power in s 197(1) is contingent upon a police officer forming a belief about the behaviour or presence of a person “in a public place”. The term “public place” is defined in s 3 of LEPRA:

public place includes—

(a)   a place (whether or not covered by water), or part of premises, that is open to the public or is used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, and

(b)   a road or road related area,

but does not include a school.

52. That definition, without being exhaustive, incorporates the definition of “public place” in s 3 of the Summary Offences Act with the addition of “a road or road related area”. The latter terms are respectively defined in s 3 of LEPRA by reference to the definitions in s 4(1) of the Road Transport Act 2013 (NSW):

road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.

…

road related area means—

(a)    an area that divides a road, or

(b)   a footpath or nature strip adjacent to a road, or

(c)   an area that is open to the public and is designated for use by cyclists or animals, or

(d)   an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or

(e)   a shoulder of a road, or

(f)   any other area that is open to or used by the public and that has been declared under section 18 to be an area to which specified provisions of this Act or the statutory rules apply.

53. The power in s 197(1) of LEPRA is engaged upon a police officer believing on reasonable grounds that the behaviour or presence of a person in a public place has a particular effect on other persons (s 197(1)(a)-(c)) or is likely to have that effect (s 197(1)(c)), or is for a particular purpose (s 197(1)(d)-(e)). Focusing on ss 197(1)(a)-(c), which are of primary significance in the present case, they entail an assessment on the part of a police officer of the behaviour or presence of a person in a public place by reference to the effect of that behaviour or presence upon others (and, in the case of s 197(1)(a), on “traffic”). For the avoidance of confusion, in these reasons I will refer to a person or persons to whom a direction may be given as a “subject person” or “subject persons”, and to those who may be believed to be obstructed, harassed, intimidated, or caused fear for the purposes of s 197(1)(a)-(c) as “affected persons”.

54. The police officer must believe on reasonable grounds that the subject person’s behaviour or presence in the public place:

1. “is obstructing” another person or persons or traffic (s 197(1)(a)); or

2. “constitutes” harassment or intimidation of another person or persons (s 197(1)(b)); or

3. “is causing or likely to cause fear” to another person or persons (s 197(1)(c)).

126. In summary, s 200(5) of LEPRA effectively burdens the implied freedom of communication about government or political matters. Although the scheme in Pt 14, read as a whole, is not directed at protest activity, s 200(5) applies directly to such conduct. Protests and procession routes in areas of civic significance will likely place protestors in close physical proximity to places of worship, and the marginal burden imposed by s 200(5) goes further than the constitutionally valid baseline in a meaningful way.

Is the purpose of s 200(5) of LEPRA legitimate?

140. As the joint judgment stated in McCloy at [31], “the process of justification for which Lange provides commences with the identification of the statutory purpose or purposes” of the provision. The object or purpose of a law is what it is designed to achieve in fact, which will sometimes be stated in the text of the law and will sometimes emerge from the context: McCloy at [132] (Gageler J). The joint judgment in McCloy described the concept of legitimacy of purpose at [31]:

“A legitimate purpose is one which is compatible with the system of representative government provided for by the Constitution; which is to say that the purpose does not impede the functioning of that system and all that it entails. So too must the means chosen to achieve the statutory object be compatible with that system.”

141. The plaintiff submitted that in light of the level of burden on the implied freedom that s 200(5) imposed, the provision should only be held to be valid if supported by a compelling legitimate purpose to which it is closely tailored. Relying on the long title to the Places of Worship Amendment Act, the plaintiff submitted that the purpose of s 200(5) was the “authoris[ation of] police officers to issue move on directions in relation to apparently genuine demonstrations, protests, processions or organised assemblies occurring in or near places of worship”. That purpose was, he submitted, “no more than that of eliminating or restricting on-site protests within particular geographic areas for reasons that are designedly unparticularised and indeterminate”, and was neither legitimate nor compelling. Drawing an analogy with the provisions in issue in Unions NSW (2013) (at [51]), the plaintiff submitted that s 200(5) did not effectively serve what he described as the purported purpose of protecting worshippers, but it did serve another practical purpose, namely, curtailing protests.

142. “Where determination of the purpose of a law is controversial, resolution of that controversy can be assisted by considering how closely the legal operation of the law conforms to the asserted purpose”: Brown at [215] (Gageler J). In an “extreme case”, the disconformity “might be so great as to admit of the conclusion that the law cannot be explained as having the asserted purpose”: at [215]. Unions NSW (2013) was such a case. As Gageler J summarised in McCloy at [133]:

“[133] In Unions NSW [(2013)], French CJ, Hayne, Crennan, Kiefel and Bell JJ considered such a rational connection to be wanting. Their Honours found ss 96D and 95G(6) of the Act to impose a practical restriction on political communication, and found that the practical restriction was sufficiently identified for the purposes of the analysis in that case as the removal of a source of donor funding which would otherwise have been available to political parties and candidates to meet the costs of engaging in political communication, as regarded s 96D, and the restriction of the amount that a political party could incur by way of electoral communication expenditure, as regarded s 95G(6). They noted the argument of the State that the provisions were designed to protect its electoral and governmental system from corruption and undue influence, and stated that they saw no reason to doubt that to be the legitimate end of the Act as a whole. The problem they identified lay in the absence of any satisfactory explanation as to how the terms of the prohibition imposed by the two challenged provisions were calculated to promote that legitimate end. The absence of such an explanation led them to conclude that the restriction on political communication imposed by those provisions was not explained by the law's pursuit of that end, let alone justified by the law's pursuit of that end.”

143. In Brown, Gageler J observed that where an asserted purpose is plausible, “examination of how well the legal operation of the law conforms to that purpose can sometimes more profitably be left” to be examined at the third stage of the constitutional inquiry, explaining at [216]:

“If the answer is that the law is not reasonably appropriate and adapted to advance the asserted purpose, the controversy as to whether the law can be explained as having the asserted purpose or is better explained as having some other purpose will have become redundant.”

144. Both the Attorney General in his second reading speech and the Statement of Public Interest tabled in relation to the Crimes Amendment (Places of Worship) Bill 2025 stated that the purpose of the Places of Worship Amendment Act was “to ensure that people in NSW are free to practice their religion without being impeded or harassed by others”. The material adduced by the defendant, to which I have referred above at [29]-[33] demonstrated that acts of violence were being directed at synagogues, and protest activity was occurring outside synagogues, the locations being selected because synagogues are where persons of Jewish faith congregate to worship. As the Attorney General stated in the second reading speech, the legislation sought “to address activities outside places of worship that aim to intimidate people trying to attend those places to express their faith, or that prevent people from practising their faith in New South Wales”.

145. The purpose of protecting religious freedom is “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”: LibertyWorks at [184], quoting McCloy at [130]. Freedom of religion, “the paradigm freedom of conscience, is of the essence of a free society”: Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120 at 130; [1983] HCA 40 (Mason ACJ and Brennan J). The plaintiff did not contend to the contrary. Senior counsel for the plaintiff submitted at the hearing that the purpose disclosed in the second reading speech was “self-evidently an important aspect of the sort of society that the Constitution in prescribing for this system of government envisages”. Rights of religious freedom have long been recognised, including in Article 18 of the International Covenant on Civil and Political Rights.

146. As to the plaintiff’s primary position, I do not consider that s 200(5) of LEPRA is relevantly analogous to the legislation in issue in Unions NSW (2013). Here, s 200(5) is plausibly connected to the purpose of protecting religious freedoms. It lifts the bar that otherwise limits directions in relation to protest activity in or near a place of worship, being a building or structure ordinarily used for worship. A police officer can only give a direction under s 197 if one of the matters in subs (1) is satisfied, each of which is directed at the conduct of a person (or group) to whom a direction is to be given having particular consequences for persons in or near that place (obstruction, intimidation, harassment, fear); and, as I noted at [101] above, those persons could include those attending or leaving a place of worship, or attempting to do so. That the long title of the Act refers only to the mechanism (the making of directions) rather than the purpose (the protection of religious freedom) does not mean that the true object of the law goes no further than that mechanism. Questions as to how well the impugned law conforms to that stated purpose can be addressed at the next stage of the analysis.

Is s 200(5) reasonably appropriate and adapted to advance the stated purpose in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative government?

147. As I noted above, the plaintiff’s analysis on this question took up the calibration approach adopted by Gageler J in cases including Tajjour and Brown. On that analysis, which rested on the plaintiff’s broader construction of s 200(5) and the correspondingly greater burden on the implied freedom, the plaintiff submitted that the law needed to be closely tailored to the identified purpose, and it was not. Applying Gageler J’s taxonomy of “fit” in Brown (see [108] above), the plaintiff submitted that s 200(5) is both underinclusive and overinclusive:

1. Section 200(5) is underinclusive in the sense that the carve-outs from the application of the subsection (notably the exception for industrial action) are not rationally connected to the purpose of the law, given that such action could as easily obstruct access to a place of worship as a protest of some other kind. Without being fatal, the plaintiff submitted that this was a capricious result that suggested the law was not necessary to achieve its purpose.

2. Section 200(5) is overinclusive by reason of the breadth of the power, pursuant to which a protest or demonstration may be the subject of a direction which is not sensibly connected to the purpose of protecting religious freedom. The plaintiff gave the hypothetical example of a late-night environmental vigil held at Town Hall, near St Andrew’s Cathedral. There would be few (if any) persons attending the place of worship at that time, but the demonstrators would nonetheless be near a place of worship and would likely obstruct, to some degree, people shopping or moving along George Street.

148. The defendant did not engage directly with the plaintiff’s approach. Instead, the defendant relied on structured proportionality to address the third question, on the basis that Ravbar did not preclude its use as a tool of analysis. The defendant’s analysis, however, proceeded on its construction of s 200(5) as narrowing the application of s 197 to affected persons being those entering or leaving a place of worship or attempting to enter or leave. The plaintiff submitted that on the structured proportionality analysis, its arguments in relation to s 200(5) were directed at the second and third steps: s 200(5) was not “necessary” and was not “adequate in its balance”.

149. In circumstances where the defendant bears the persuasive onus and both parties addressed the third inquiry by reference to structured proportionality (the plaintiff doing so as an alternative formulation of his submissions), I will adopt that approach.

Suitability

150. As noted above, the focus of suitability is whether the law has a rational connection to the purpose of the provision. The test “asks whether the law (the means) is directed towards the object (or end) that is ostensibly put forward as its rationale”: Ravbar at [311] (Gleeson J). A law exhibits a rational connection to its purpose “if the means for which it provides are capable of realising that purpose”: Comcare v Banerji at [33].

151. Section 200(5) is suitable in the requisite sense. As the defendant submitted, a power to direct protesters to move on from a location in or near a place of worship, under pain of penalty, is rationally connected to the purpose of ensuring that people are free to practice their religion without impediment or harassment by others, both by moving along those causing problems and by deterring others from doing so. The plaintiff did not submit to the contrary.

Necessity

152. Where a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution, and it is suitable for the achievement of that purpose in the sense described, such a law “is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and would result in a significantly lesser burden on the implied freedom”: Comcare v Banerji at [35].

153. The necessity analysis requires consideration of how a less burdensome law would achieve the same purpose. In undertaking that consideration, the High Court has recognised that “what is necessary to achieve a given legislative purpose must be, to a large extent, within the purview of Parliament and, therefore, that the ascertainment of what is reasonably appropriate and adapted to a legitimate purpose is not a prescription to engage in the assessment of the relative merits of competing legislative models”: Clubb at [267] (Nettle J).

154. The plaintiff submitted that an obvious and compelling reasonably practicable alternative means of achieving the identified purpose could be found in s 214B of the Crimes Act which targets behaviours likely to impinge on religious freedom without drawing other activities into the area “near” places of worship. The plaintiff also referred to s 200(3) of LEPRA as providing a legislative model by which a more targeted provision could be incorporated into the existing provisions of Pt 14.

155. The defendant, on the other hand, submitted that this limb was satisfied, but on the basis of the construction of s 200(5) combined with s 197 for which it contended, pursuant to which a police officer could only give a direction in respect of conduct affecting persons entering or leaving, or attempting to enter or leave, a place of worship. On that construction, the provisions would be directed at behaviours reasonably believed to impinge on the rights and interests of persons seeking to practice their faith. It would be difficult to conceive of an obvious and compelling alternative which is equally practicable and would result in a significantly lesser burden on the implied freedom.

156. However, for the reasons I have given above, by contrast with s 214B of the Crimes Act, s 200(5) of LEPRA is not so limited. It operates by reference to place, lifting the bar in relation to a protest or demonstration in or near a place of worship, leaving s 197(1) to operate in accordance with its terms by reference to persons in or near the place at that time. Whether formulated so as to rest on the reasonably grounded belief of a police officer (as in s 200(3)) or as a matter of fact (as in s 200(4)), the type of qualification for which the defendant contended as a matter of construction of s 200(5), and for which s 214B makes provision — that the affected persons be those accessing or attempting to access or leave a place of worship — presents an obvious and compelling alternative that is equally practicable and would impose a lesser burden on the implied freedom of political communication.

157. This is not to say that a law such as s 200(5) would need to replicate all of the elements of s 214B in order to satisfy the necessity requirement. As a provision establishing a criminal offence, s 214B incorporates elements that may be inapposite in the context of a provision such as s 200(5), such as the mens rea element. What is significant about s 214B for present purposes is that it is squarely directed at the rights and interests of the persons whom the legislation was intended to protect, rather than relying on proximity to a place as a proxy for the rights and interests of those persons.

Adequacy in the balance

158. Although my conclusion on necessity is sufficient to demonstrate invalidity, I will nonetheless consider the third step in the structured proportionality analysis. An inquiry into whether a law is adequate in its balance requires a value judgment, consistently with the limits of the judicial function, as to the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the implied freedom: McCloy at [2]; Ravbar at [426]. A law is adequate in its balance “unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom”: Farm Transparency at [55].

159. The defendant submitted that, given the low level of burden it submitted was imposed by the law, the benefit was not outweighed by such a minor adverse effect. However, as the Solicitor General accepted at the hearing, that submission rested for practical purposes on the defendant’s construction of s 200(5) read with s 197, pursuant to which a direction could not be given under s 197 other than in respect of obstruction, harassment, intimidation or causing fear to persons entering or leaving, or attempting to enter or leave, a place of worship. As the plaintiff submitted, and I have found, on its proper construction s 200(5) is not so limited and does not have that constraining effect on s 197.

160. I have referred above to the purpose intended to be served by s 200(5) of LEPRA. The importance of that purpose cannot be gainsaid. The difficulty, as the plaintiff submitted, is with the overinclusive nature of the provision, which lifts the bar on the giving of a direction in relation to a protest or demonstration by reference to place alone, leaving s 197 to operate in accordance with its terms. As Nettle J observed in Brown, “where the means adopted is a power which turns upon the exercise of a discretion which is, in its terms, broad ranging, it is the more likely that it will disproportionately burden the implied freedom even though it might be said, or hoped, that the ‘actual application may be limited by the sensible exercise’ of the discretion by the person or official to whom the discretion is granted”: at [293]. For the reasons I have outlined above, the terms of the discretions in issue in Brown were broader than those at play in s 197 of LEPRA. Nonetheless, the difficulty with s 200(5) is that apart from requiring close physical proximity between a protest or demonstration and the place of worship, a protest or demonstration may be the subject of a direction in circumstances where the protest is not directed at the place of worship and none of the persons affected by the behaviour or presence of participants in that place has a connection with the place of worship. In view of the locational overlap between places of worship and common places of protest, accepting the importance of the purpose served by s 200(5) of LEPRA, the law is not adequate in its balance.

Conclusion

161. I am therefore satisfied that s 200(5) is not reasonably appropriate and adapted to its legitimate purpose, being the third limb of the relevant constitutional inquiry. It follows that s 200(5) of LEPRA is invalid. I will make a declaration to that effect.

162. The parties asked to be heard on costs irrespective of the outcome of the proceedings. I will make orders for that to occur, with a view to dealing with costs on the papers in the event that the parties cannot reach agreement.

163. Accordingly, I make the following orders:

1. Declare that section 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) impermissibly burdens the implied constitutional freedom of communication on government or political matters and is invalid.

2. Direct the parties to file and serve, within 14 days of today, agreed short minutes of order as to costs or, in lieu of agreement, the orders that each seeks accompanied by submissions not exceeding 5 pages in support, with any dispute as to costs to be determined on the papers.

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Decision last updated: 16 October 2025