By Paul Gregoire and Ugur Nedim
Palestine Action Group organiser Josh Lees filed a claim in the Supreme Court of New South Wales on 17 March 2025, seeking a declaration that a law empowering police to issue move on directions near a place of worship in NSW infringed upon the implied right to political communication within the Australian Constitution, and was therefore invalid.
Passed on 21 February, the Crimes Amendment (Places of Worship) Bill 2025 inserted the power to give a direction to “a demonstration, protest, procession or assembly” if it’s unauthorised and taking place near a place of worship into subsection 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Lees presented eight affidavits from various constituents involved in putting on a range of public protests for a variety of causes, who outlined their experiences in organising in and around Sydney in prominent locations, including within the CBD at Sydney Town Hall and Hyde Park North, with many of the most popular protest sites being nearby places of worship.
Not only did the affidavits assert that those gathering for rallies in the Sydney CBD could be hounded with directions by police officers to move on but the other issue involved with the law is that protesters taking part in marches through the city would potentially be subject to the issuing of directions to disperse because such processions pass multiple places of worship in a single route.
NSW Supreme Court Justice Anna Mitchelmore went on to agree with the plaintiff’s argument that the legislative construction of the move on power provided officers with an illegitimate ability to direct protesters near a place of worship to disperse not because, as ostensibly intended, they were obstructing people entering and leaving it, but simply due to blocking people on the street.
NSW police move on powers
As Mitchelmore explained, the subsection 200(5) place of worship move on power sat under part 14 of the LEPRA, which is a part of the legislation titled “Powers to give directions”.
Under that part, subsection 197(1) permits officers to issue a direction to a civilian if an officer “believes on reasonable grounds that the person’s behaviour or presence in the place is causing an issue” in terms of obstructing others or traffic, along with behaviour constituting harassment or intimidation of others, or that their behaviour is causing others to be fearful.
Section 199 of the LEPRA provides that failing to comply with a move on order in part 14 makes an individual liable to a fine of $220. An individual has broken this law only when a direction had been given and they were shown to have ignored it.
Subsection 198(1) of the LEPRA permits directions be issued to persons comprising a group, but subsection 200(2) limits this, as officers cannot issue a move on order to a “genuine demonstration or protest, a procession, or an organised assembly”. However, subsection 200(3) to 200(5) provide exceptions in terms of safety, unauthorised protests and rallies near places of worship.
The subsection 200(5) places of worship move on power was passed in conjunction with the new offence of impeding, harassing, intimidating or threatening a person accessing a place of worship, contrary to section 214B of the Crimes Act 1900 (NSW). The penalties applying to this are up to 2 years imprisonment and/or a fine of $22,000.
NSW attorney general Michael Daley said in his 11 February 2025 second reading speech that the new offence and policing power were to prevent “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”. He added that it was about preventing “fear of intimidation or harassment”.
Lees was not contesting the legitimacy of the purpose of the NSW police place of worship move on power, but rather he was challenging the fact that the legislative mechanism passed to ensure that its purpose was satisfied, was rather being used to impermissibly burden “the implied freedom of communication on government or political matters”.
The offending move on power
Justice Mitchelmore further explained that the implied right of political communication in the Constitution is essential for responsible government and that it requires that constituents can “exercise free and informed choice” when voting for parliamentary representatives.
Lees put to the court that the combined operation of section 197(1) and section 200(5) permits officers “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”.
The defendant, the state of NSW, argued that the operation of subsections 197(1) and 200(5) read together was more confined than the plaintiff had been asserting, as it would apply only to situations “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”.
Subsection 200(5)(a)(ii) of the LEPRA stipulated that “a police officer is not precluded from giving a direction in relation to a demonstration, protest, procession or assembly if” it “is occurring in or near a place of worship, within the meaning of the Crimes Act 1900, section 214B”.
Her Honour found that while this subsection 200(5)(a)(i) didn’t have the broad reach that Lees asserted, its reach was well beyond that the NSW state had suggested it was progressing, which was that it could only be used when protesters were obstructing actual churchgoers, but in fact, the law would be enlivened if demonstrators were obstructing passersby on the street near a church.
Further practical considerations
The prominent local protest organisers and participants that submitted affidavits to the court set out that when protests are being organised, those involved usually submit a Form 1 to police at least seven days prior to an event and if NSW police doesn’t take court action to shut it down, the event is understood to be authorised and participants are then immune to protest-related summary offences.
So, the subsection 200(5) move on power that served to target unauthorised protests would be available to police in the case of snap rallies, or unauthorised protests organised at the last minute. Such actions are usually small in size, and if they do take place near a place of worship, and they can cause obstruction to the general public in the same vicinity of the emergency protest.
The places of worship laws that were passed in February 2025 were sparked by a 4 December 2024 demonstration nearby Sydney’s Great Synagogue. This action was not said to have posed any obstruction to people attending an event at the place of worship, which was not religious but rather featured a member of the Israeli Defence Forces speaking about the Israeli weapons industry.
Lees argued that the stipulation of a protest being merely “in or near a place of worship” would lead to officers being able to issue such directions when unauthorised snap protests were considered to be obstructing anyone in public near a place of worship or was causing anyone in public to feel harassed or intimidated or to be fearful.
Determination of the court
Justice Michelmore found the stipulation that a move on power could be issued under subsection 200(5) when a protest was “in or near” a place of worship didn’t lead to a significantly broad reach in terms of vicinity to a place of worship, simply because the phrase included “in”, which then lends itself to demonstrations that are at least “occurring in close physical proximity to a place of worship”.
Her Honour noted that the plaintiff’s assertion that the move on power had a broader reach would have been the case if the phrase had been “at or outside”. This was further conveyed by the fact that the section 214B of the Crimes Act offence uses the same phrasing and was “intended to be complementary”, while the offence itself specifically involves obstructing those entering and leaving.
However, the construction of section 200(5) of the LEPRA did not specifically require that those being provided directions from the NSW police to end their demonstration that was near a place of worship do not have to be involved in directly obstructing people from entering or leaving the place of worship but rather they could be anyone on the street.
The NSW Supreme Court justice found that subsection 200(5) of the LEPRA did impinge upon the “freedom of communication about government or political matters”, as protests in “areas of civic significance” would likely result in demonstrations located nearby a place of worship being shut down, and therefore, it could have been used to silence protesters unconstitutionally.
Justice Mitchelmore ruled on 16 October 2025 that she was satisfied that subsection 200(5) of the LEPRA was “not reasonably appropriate and adapted to its legitimate purpose”.
Her Honour further declared “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,” and the justice added that the decisions on costings would be made at a later date.
