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A constitutional challenge has been launched against controversial laws in New South Wales that restrict protest actions for up to three months after terrorist incidents, introduced following the December Bondi attack.
The groups the Blak Caucus, Palestine Action Group (PAG) and Jews Against the Occupation ‘48 filed the challenge in the NSW supreme court on Wednesday, arguing in the court summons that the laws are invalid because they “impermissibly burden the implied constitutional freedom of communication on government and political matters”.
The co-applicants announced their intention to challenge the laws, which prevent protests being authorised by police after a public assembly restriction declaration (Pard). The laws were rushed through parliament last month after the Bondi massacre.
In December, PAG organiser Josh Lees accused the government of stripping away the right to peaceful protest with “no evidence at all” that it would make anyone safer.
Wednesday’s challenge comes after the NSW police commissioner, Mal Lanyon, announced on Tuesday that a 14-day declaration made under the powers on Christmas Eve for Sydney’s CBD, south-west and north-west policing areas would be extended until 20 January. He cited ongoing community safety concerns, but said no further intelligence had come to light to motivate the move.
The groups have expressed concern that the declaration, which can be extended for a total of 90 days, could affect expected Invasion Day rallies on 26 January. Asked about the possibility on Tuesday, Lanyon said it was “very premature to consider that”.
The NSW premier, Chris Minns, who has described civil liberties concerns as “overblown”, has said the government was “alive to the threat” of a challenge, but “confident that the laws will withstand a constitutional challenge”.
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Constitutional law experts have expressed uncertainty about the success of a challenge against the powers, which do not prohibit public assemblies outright, but prevent their authorisation under NSW’s form 1 system. Authorised protests provide protection from prosecutions for offences such as obstructing pedestrians and traffic.
The premier and police commissioner have insisted the laws do not restrict “peaceful” and static assemblies, but the groups have argued the changes, which also give police move-on powers at unauthorised protests, effectively ban all protests.
After the extension of the declaration on Tuesday, the president of the NSW Council for Civil Liberties, Timothy Roberts, told Guardian Australia the laws were creating an “extraordinary chilling effect, sitting in the shadow of police discretion about what protests are and aren’t appropriate”.
This is the latest challenge against protest laws introduced by the Minns government. In October, the NSW supreme court ruled a law that gave police the power move on protesters “in or near” a place of worship was unconstitutional, after a challenge launched by PAG.
The group successfully appealed a police decision not to authorise a march on the Sydney Harbour Bridge in August, although they lost an appeal against a prohibition on a march to the Opera House forecourt in October, with the court citing “extreme” safety concerns.
A court date for the challenge could be decided at a preliminary hearing in Sydney scheduled for Thursday.
