Supreme Court strikes down parts of new NSW anti-protest laws for impermissibly burdening the Commonwealth Constitution’s implied freedom of political communication
Kvelde v State of New South Wales [2023] NSWSC 1560
Summary
Two environmental activists who challenged New South Wales’ recently reformed anti-protest laws have been in-part successful. The Supreme Court declared parts of section 214A of the Crimes Act 1900 (NSW) (Crimes Act) invalid for impermissibly burdening the Commonwealth Constitution’s implied freedom of political communication.
Facts
Section 214A(1) of the Crimes Act provides as follows:
214A Damage or disruption to major facility
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) causes damage to 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.”
Ms Helen Kvelde and Ms Dominique Jacobs, environmental activists part of the Knitting Nannas group, sought declarations that:
section 214A of the Crimes Act is invalid because it infringes the implied constitutional freedom of political communication and is thus beyond the power of the Parliament of New South Wales; and
clause 48A(1) of the Roads Regulation 2018 (NSW) (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, opposed the relief.
The plaintiffs were partially successful on the Crimes Act issue but not successful on the Roads Regulation issue. The focus of this note is on the first issue.
Decision
Standing
In the first instance, the State challenged the plaintiffs’ standing to seek declaratory relief. The plaintiffs relied on federal jurisdiction under section 76(i) of the Constitution in any matter “arising under this Constitution, or involving its interpretation”, which may be exercised by the Supreme Court under section 39(2) of the Judiciary Act 1903 (Cth). After considering the relevant authorities, Justice Walton found that the plaintiffs had standing as they were persons who had attended, organised, promoted, and planned many protest actions, and their freedom of action had been particularly affected by the impugned laws.
Section 214A of the Crimes Act
In examining the validity of section 214A of the Crimes Act, Justice Walton stepped through the settled three-part test to establish whether a law contravenes the implied freedom of political communication.
1. Does the law effectively burden the implied freedom in its terms, operation or effect?
In answering this limb, the Court reaffirmed the general proposition that protests over environmental issues constitute political communication, whilst noting that this form of communication can take many forms. With this established and having analysed the construction and operation of section 214A, the Court concluded that there was real prospect that section 214A could impact on various methods of political communication and that the burden is potentially substantial and direct.
The State contended that section 214A did not effectively burden the implied freedom primarily because the conduct it prescribes is otherwise unlawful. Justice Walton:
with respect to subsections 214(1)(a) and (b), agreed that the conduct prohibited by these subsections was already prohibited by section 195(1) of the Crimes Act, which prohibits the intentional or reckless destruction or damage of property belonging to another, and the common law offence of obstruction and/or public nuisance respectively.
found that the State failed to prove that the conduct prohibited by subsection 214A(1)(c), so far as the partial closure of facilities is concerned, and subsection (1)(d) is otherwise prohibited. These subsections were viewed as considerably wider and deeper in their operation and whilst the contemplated conduct may cause inconvenience, it is not otherwise unlawful. Accordingly, for those subsections, the burden was concluded to be direct and substantial.
In reaching this view, the Court was also tasked with determining whether or not section 214A creates a real additional burden on the implied freedom. In this regard, the Court drew similarities between Brown v Tasmania (2017) 261 CLR 328 (18 October 2017) and the current scenario. In both instances the plaintiffs were hesitant to test the respective laws because of the uncertainty created by their operation.
2. 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 Court found that the purpose of section 214A was legitimate, being “one which is compatible with the system of representative government provided for by the Constitution, such that the purpose does not impede the functioning of that system and all that it entails”. The Court accepted the purpose of section 214A as being “to increase deterrents to such conduct causing damage or serious disruption or obstruction to facilities and hence, to community generally”. Justice Walton did not consider that the purpose ought to extend to the criminalisation of conduct merely causing inconvenience to particular individuals who, for example, were redirected by protesters situated near a major facility.
3. 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?
In answering this question, accordant with Clubb v Edwards (2019) 267 CLR 171 (10 April 2019), Justice Walton applied a structured proportionality analysis to determine whether or not the restriction is justified. Section 214A(1)(c) and (d) were found to be not reasonably necessary in the way they were cast. To demonstrate the point, the Court considered an alternative prohibition proposed by the plaintiffs, being the creation of an offence for engaging in unlawful conduct that causes damage or serious disruption to major facilities where unlawful conduct is defined to include tortious conduct. It observed that the prescription of an offence in this way would have achieved effectively the same objectives while imposing a significantly lesser burden upon the implied freedom. This finding empowered the Court to conclude that the adverse effect of section 214A(1)(c) and (d) on the implied freedom significantly outweighed the benefit sought to be achieved.
Clause 48A(1) of the Roads Regulation
In finding that clause 48A(1) of the Roads Regulation was not invalid, the Court found that the provision did not transgress the high threshold for unreasonableness. The Court also rejected the plaintiff’s submission that an impermissible sub-delegation had occurred. In all circumstances, the Governor acted within the authority provided by the Roads Act.
Declaration
The Court declared that subsection 214A(1)(c), so far as the provision criminalises conduct that causes the closure of part of a major facility, and subsection 214A(1)(d) impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution and are therefore invalid.
Commentary
This decision recognises that the NSW Government must allow communities to peacefully protest government policy in public spaces, including train stations, such as Central, Town Hall and Martin Place, places that have historically been synonymous with peaceful protest.
Section 214A was added to the Crimes Act in 2022 as part of a wider anti-protest reform package following a series of protests that caused disruption at Port Botany and the Spit Bridge.
The laws, which passed with the support of the then Labor opposition, may be subject to further judicial consideration. Following the decision, the Sydney Morning Herald reported that the Minns Government was:
“carefully considering the judgment and seeking advice on appeal options or options for legislative reform to ensure that protest activity is appropriately regulated and balances the rights and freedoms of the people of NSW”.
Authored by Jack Brown, Lawyer, Norton Rose Fulbright
January 2024