By Paul Gregoire and Ugur Nedim
The legal challenge to the New South Wales government’s December 2025-passed public assembly restriction declaration or PARD law, which allowed the NSW police commissioner to restrict protest marches, was such a high-profile case that much of the state is already aware it succeeded in seeing the impugned provisions struck down, but the learned judges’ reasonings are less well known.
A three justice bench of the NSW Court of Appeal (NSWCA) comprised of NSW Chief Justice Andrew Bell and Justices Julie Ward and Stephen Free agreed with the plaintiffs’ contention that the entire law was unconstitutional because it directly impinged upon the implied right of political communication that is contained in the Australian Constitution.
The case challenging the constitutionality of the NSW government law was filed with the NSWCA on the 7 January 2026 by plaintiffs from two activist groups: Elizabeth Jarrett from the Blak Caucus, Josh Lees from Palestine Action Group and Paul Silva also from the Blak Caucus. UN special rapporteur Ben Saul too provided opinion, as amicus curiae, or as an expert not directly involved in the case.
The activists put to the court that the issue with the law was the trio were going to continue to protest regardless of any PARD zone being declared, which would put them at heightened risk of being moved on or arrested, and this is not the norm for protests organised in NSW, as authorised protesters are protected, while other constituents who don’t demonstrate wouldn’t face this risk.
The court accepted this as a valid reason to test the constitutionality of the law, which had been drafted and passed on the fly, in direct response to the 14 December 2025 Bondi massacre, which saw 15 civilians murdered. The law was predicated on imposing PARD zones after such incidents have been declared terror-related, and a ban was in place in the Sydney CBD when the case was filed.
The defeated laws
The PARD legislation, which came into effect on 24 December 2025, amended three existing Acts. The laws permitted the NSW police commissioner to impose a PARD, or a ban on protest street marches, within a specified region, after a declared terror incident. A PARD had a 90 day shelf life, unless it was ended earlier by the police commissioner, during one of his required 14 day reviews.
The police commissioner then imposed a PARD zone on the day the law came into play in response to the Bondi terror attack. This meant that the Form 1 process contained in part 4 of the Summary Offences Act 1988 (NSW) was suspended in three police area commands. So, no protest marches could take place within those areas. However, stationary public assemblies could continue.
Part 4 of the Summary Offences Act sets out the Form 1 process that involves rally organisers intending to hold a protest march submitting a form to the police commissioner setting out the details and the route, and if no objection is made, the procession is understood to have been authorised, and regular road obstruction summary offences do not apply to those marching.
Another aspect of the PARD regime is that it had enabled police officers in a PARD zone to issue a move on order to see stationary public protesters disperse from an area if it was found their action was obstructing other people, while rallying without marching. This was particularly contentious as there are specific laws in place protecting protesters from being moved on by police.
Matters regarding constitutionality
“When it comes to laws of this kind that restrict communication on governmental or political matters, the legislative power of the state is subject to a fundamental limitation, derived from the Commonwealth Constitution,” the three judge bench of the NSWCA set out in their 16 April 2026 ruling.
“Such a law is only valid if the burden on freedom of communication is imposed to fulfil a constitutionally legitimate purpose, and the means adopted are reasonably appropriate and adapted to achieve that purpose,” their Honours added.
The NSWCA justices explained that just because the NSW parliament considers there is an urgent need to act on an issue in the public interest, this does not mean it can act outside of the limits that the constitution places in order to uphold certain freedoms. Their Honours underscored that the founding document’s restrictions are not absolute, but courts need to enforce these limitations.
As to the connection between the freedom of political communication and public protests, the judges set out that it is well established that protests are vital forms of disseminating political ideas that can often be in opposition to the majority or dissenting in terms government policy. These non-verbal forms of communicating political ideas are also considered a hallmark of democratic societies.
The implied freedom in the Constitution is to prevent the passing of laws limiting communication on politics and government. But it is “not absolute, and it does not entail freedom from all regulation or restraint”. The freedom exists as a result of operating a democratic representative government, and it serves to limit the powers of the executive and parliament to ensure democracy continues.
The recent authority on whether a law illegitimately burdens the freedom of political communication is the 2025 High Court case Ravbar, which applied a three question test: does the impugned law burden the freedom, and if so, is its purpose legitimate, and if it is, then the question is whether the law has been drafted compatibly to achieve its aim, and if not, then it should be struck down.
In terms of the first question, the Crown argued that PARDs only restricted marches in small areas for limited periods. But their Honours found that the first PARD zone was huge, and while stationary rallies were permitted additional restrictions were placed on them, and these too influenced other constituents’ decisions on participating in protests. Therefore, the law did burden the freedom.
As for the second question on the impugned law’s purpose, their Honours considered the speech the NSW police minister gave on introducing the law, in which she expressed that after the Bondi attack social cohesion was under threat, and this would be the case after similar terror-related incidents, so in these contexts, protests could threaten social cohesion.
The NSWCA justices found that the minister’s second reading speech and an accompanying statement of public interest regarding the law outlined that “the legislation was intended to remedy the identified mischief by conferring the power to impose PARDs that would operate to discourage all public assemblies from being held in any area to which a PARD applied”.
The “mischief” identified was any “harm to social cohesion” and preventing it from occurring was to be achieved by “avoiding the perceived divisiveness and disharmony that arises from public assemblies being held in the period following a terrorist attack”.
But their Honours found that the law attempted to achieve these aims not solely through banning potentially targeted protests related to issues surrounding the terror attack, but rather the law aimed at stamping out all protest.
So, the PARD law “was not compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, and this is antithetical to the purpose of lawmaking in NSW.
The purpose of the law was not solely to shut down protest in a certain vicinity or even to protect those constituents once removed, but it was to silence “political expression by some members of the community because it might be upsetting, inflammatory and divisive for” any constituents. So, the state was trying to protect the entire constiuency from any offence or stress such ideas might cause.
As the purpose of the law, it was found to be illegitimate, as it sought to shut down all protest rather than those which may be provocative in relation to the terror-related incident that had enlivened their use, and therefore, the third question as to whether the now repealed provisions were appropriate and adapted to advance the legitimate objectives, no longer had to be answered.
But in considering the final aspect of the test, their Honours found that the “lack of proportionality between the notionally legitimate objective and the means chosen to pursue that objective is a problem that is inherent in the power itself”, and they added that “one does not need to consider any particular exercise of the power in order to recognise the disproportionality”.
“For these reasons, even if the impugned provisions are to be understood as having the narrower purpose urged by the state, the impugned provisions would also fail at the third stage of the constitutional inquiry,” their Honours underscored.
The orders of the day
Their Honours said in summing up that “the impugned provisions infringe the implied freedom of political communication”, and therefore, the laws should be declared invalid.
On 16 April 2026, the three NSWCA justices declared the various amendments the Minns government’s legislation made to the Terrorism (Police Powers) Act 2002 (NSW), the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Summary Offences Act 1988 (NSW) were all invalid. And they further ordered the state to pay the plaintiffs’ court costs.
Photo supplied Palestine Action Group
