Lees v State of New South Wales

1. [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. [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. [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. [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. [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. [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. [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:

8. [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. (1)

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

   2. (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. (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. [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. [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. (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. (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. (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. [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

1. [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).

2. [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

1. [14]

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

2. [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. (1)

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

   2. (2)

      an affidavit of April Holcombe, affirmed 28 April 2025;

   3. (3)

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

   4. (4)

      an affidavit of Padraic Gibson, affirmed 28 April 2025;

   5. (5)

      an affidavit of Peter Murphy, affirmed 28 April 2025;

   6. (6)

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

   7. (7)

      an affidavit of Timothy Roberts, sworn 28 April 2025.

3. [16]

   The plaintiff’s evidence established the following facts.

4. [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]).

5. [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]).

6. [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.

7. [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]):

8. [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. (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. (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. (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. (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]).

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]).

10. [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.

11. [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]:

12. [25]

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

    1. (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. (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.

13. [26]

    The defendant also read:

    1. (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. (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.

14. [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.

15. [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. (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. (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].

16. [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.

17. [30]

    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.

18. [31]

    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 100th anniversary of the Israel Institute of Technology. Media reports recorded that the Great Synagogue was locked down in response to the protest.

19. [32]

    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:

20. [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):

Background to the enactment of Part 14 of LEPRA

1. [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:

2. [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”.

3. [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”.

4. [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)):

5. [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.

6. [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.

7. [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].

8. [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.

9. [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:

10. [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.

11. [44]

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

12. [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.

13. [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

1. [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.

2. [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.

3. [49]

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

4. [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.

5. [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:

6. [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):

7. [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”.

8. [54]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

9. [55]

   The affected person(s) “need not be in the public place” but must be “near that place at the time the relevant conduct is being engaged in”: s 197(3) (emphasis added).

10. [56]

    As Edmonds and Gilmour JJ recognised in Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation (2010) 190 FCR 150; [2010] FCAFC 137 (“Virgin Blue v FCT”) at [33], “‘near’ is a relative term which invites the question ‘how near?’”, which must be answered by reference to the statutory context. In the context of s 197(3) of LEPRA, how “near” an affected person referred to in s 197(1)(a)-(c) must be to the public place in which the subject person is located is informed by the effects specified in those subparagraphs. Save for the qualification on the requirement in s 197(1)(c) that the relevant conduct must be such as to cause fear to a person of reasonable firmness, the terms used in s 197(1)(a), (b) and (c) are not defined. Without precisely defining the types of conduct that would fall within each of these paragraphs, it is sufficient for present purposes to note that the paragraphs include, but are not limited to, physical impacts:

    1. (1)

       The notion of “obstructing” a person involves conduct that blocks or makes it difficult or impossible for the other person(s) to pass through: see eg Kvelde v State of New South Wales [2023] NSWSC 1560 (“Kvelde”) at [199], citing Jobling v Blacktown Municipal Council [1969] 1 NSWR 129; 17 LGRA 92 at 101. As Gordon J observed in Brown at [355], the nature and degree of interference connoted by the ordinary meaning of the word does not refer to any conduct that might affect access in any way or to any extent, however trivial. Thus, in the Summary Offences Act, in which this provision was first enacted, the term “obstructing” features in the heading of s 6, which makes it an offence to “wilfully prevent … the free passage of” a person, vehicle or vessel in a public place. Other provisions of LEPRA that use the term involve a similar connotation: see eg ss 52, 84, 96, 143, 210E, and 210P.

    2. (2)

       The concept of “harassment” has been described as “troubling or vexing by repeated acts” (Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 (“Monis”) at [154] (Hayne J); Smith v Blanch [2025] NSWCA 188 at [58]), while “intimidation” has been described as including “to overawe, to cow, or to force or deter some action”: see Meller v Low (2000) 48 NSWLR 517; [2000] NSWSC 75 at [9] (Simpson J).

    3. (3)

       The separate reference to conduct causing, or likely to cause, fear suggests a legislative intention to capture conduct that constitutes something less than intimidation, applying a standard of reasonable firmness. The ordinary meanings of the word include “[t]he emotion of pain and uneasiness caused by the sense of impending danger, or by the prospect of some possible evil” and an “[a]pprehensive feeling towards anything as a source of danger, or towards a person regarded as able to inflict injury or punishment”: Oxford English Dictionary, online ed, June 2025.

11. [57]

    Returning, then, to s 197(3) and the question of how “near” the affected persons need to be: an affected person must be sufficiently proximate to the public place in question for a police officer to believe on reasonable grounds that the conduct of the subject person in the public place is having one of the specified effects on those persons at that time.

12. [58]

    The plaintiff emphasised that the power in s 197(1) does not rest on the observed conduct in fact having one of the prescribed effects, but on a police officer forming a belief on reasonable grounds as to that matter. It followed, the plaintiff submitted, that none of the states of affairs in s 197(1)(a) to (c) must in fact exist in order for a police officer to give a direction. That submission reflects the nature of a “belief”, which was described in George v Rockett (1990) 170 CLR 104 at 116; [1990] HCA 26 as “an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture”. The defendant accepted in its written submissions that “human fallibility means that there is the possibility of mistake in the formation of such a belief”.

13. [59]

    However, it is important to bring to account what triggers the operation of s 197(1) of LEPRA, noting that:

    1. (1)

       “[b]elief is more than ‘suspicion’; it is not merely an ‘apprehension’ or even a ‘fear’; it is an actual ‘inclination of the mind’”: Prior v Mole (2017) 261 CLR 265; [2017] HCA 10 at [24] (Gageler J); and

    2. (2)

       the notion of reasonable grounds “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”: George v Rockett at 112.

14. [60]

    The belief to which s 197(1) of LEPRA refers is formed by reference to the observed conduct of a person in a public place, by a police officer who is responsible for maintaining public order in the places at which the provision is directed. The formation of the belief involves an assessment on the part of the police officer of whether the observed conduct is having one or more of the effects described above on other persons who are in or near that public place at that time.

15. [61]

    The provisions in issue in Brown, some of which rested on a police officer forming a belief on reasonable grounds, provide a useful contrast. I will address Brown in more detail below, but for present purposes it is sufficient to note that the powers given to police officers under the Workplaces (Protection from Protesters) Act 2014 (Tas) were, as Kiefel CJ, Bell and Keane JJ stated, “conditioned upon a primary question of fact and law – whether a protester is in an area that is ‘business premises’, here forestry land, or a ‘business access area’ with respect to that land”: at [66]. Their Honours observed that as a practical matter, the principal problem for both police officers and protesters was that “it will often not be possible to determine the boundaries of ‘business premises’ or a ‘business access area’”, the term “business premises” being inapt for use with respect to forestry land: at [67].

16. [62]

    Although the condition on the exercise of the power in s 197(1) of LEPRA does not involve the degree of indeterminacy that the majority in Brown considered would constitute a real deterrent of protest activity in the relevant areas, it is the case that the types of impact that are prescribed could entail a greater or lesser degree of proximity between the subject person and the affected person(s) who are in or near the place at the time (s 197(3)). Behaviour amounting to “obstruction” of another person or persons, for example, would likely entail reasonably close proximity between the subject person and the affected person(s). On the other hand, behaviour constituting harassment or intimidation, or causing fear, could take place where the persons the subject of the harassment and intimidation, although still “near” the public place, are nonetheless further away. The assessment is inevitably circumstance-dependent and will involve questions of fact and degree.

17. [63]

    If a police officer forms a belief on reasonable grounds as to one of the matters in s 197(1), s 197(2) of LEPRA imports a requirement of reasonableness in relation to the direction itself. The direction must be reasonable in the circumstances so as to alleviate or eliminate, relevantly for present purposes, the consequences of the conduct (s 197(2)(a)). The plaintiff submitted that this allowed for “further significant police discretion” to be applied, as it did not constrain the type of direction that may be given. In relation to protest activity, for example, the plaintiff submitted that a police officer could give a move-on direction of an unspecified duration, but could also give a direction to desist from certain speech acts, or put away particular flags or banners, or not use a loudhailer. Although perhaps not so intended, the submission usefully served to illustrate the range of directions that might be given subject to the overarching requirement of reasonableness, reflecting the range of behaviour and impacts that might engage the power. In some circumstances, it may be appropriate to issue a move-on direction to address the conduct in question; in other circumstances, a reasonable direction may be limited to requiring that a person cease the particular conduct that is having the relevant impact on another person or persons.

18. [64]

    The “Code of Practice for directions under Pt 14 of the Act” in Sch 3 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), given force by s 200A of LEPRA, makes this point. In relation to directions under s 197 of LEPRA, cl 2(3)-(5) of the Code provides as follows:

19. [65]

    Section 199 of LEPRA creates an offence of a similar nature to former s 28F(6) of the Summary Offences Act. Section 199(1) provides that a person must not, without reasonable excuse, refuse or fail to comply with a direction, while s 199(2) provides that a person is not guilty of an offence under s 199 “unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct”. In Antaw v R; Kitson v R; Lee v R [2021] NSWDC 820, P Taylor SC DCJ observed at [40], correctly in my view, that the requirement for persistence ensures that a person receiving a direction is given a reasonable opportunity to comply.

20. [66]

    The maximum penalty for an offence is 2 penalty units (as it was in the Summary Offences Act). Additionally, as the plaintiff submitted, a person refusing or failing to comply with a direction given, contrary to s 199, could engage the power to arrest without warrant in s 99 of LEPRA. In order to engage that power, a police officer needs to suspect on reasonable grounds that a person is committing or has committed an offence and be satisfied that the arrest is reasonably necessary for any one or more of the reasons in s 99(1)(b). Those reasons relevantly include, in s 99(1)(b)(i), to stop the person committing or repeating the offence or committing another offence.

21. [67]

    As I noted above, by s 198A(1) of LEPRA a police officer may give a direction under Pt 14 to persons comprising a group. In such a case, the police officer is not required to repeat the direction to each person in the group (s 198A(2)), although s 198A(3) provides that “just because the police officer is not required to repeat any such direction … does not in itself give rise to any presumption that each person in the group has received the direction…”.

22. [68]

    As originally enacted, s 200 of LEPRA was in identical terms to s 28G of the Summary Offences Act. It provided that Part 14 did not authorise a police officer to give a direction in relation to an industrial dispute or to an apparently genuine demonstration or protest, a procession or an organised assembly. For convenience below, I will use “demonstrations or protests” as a collective reference. In 2016, s 200 of LEPRA was replaced by what continues in force as s 200(1)-(4): Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), Sch 3 item 2. As I noted above, s 200(5) was inserted pursuant to the Places of Worship Amendment Act. The section as a whole now provides:

23. [69]

    Section 200(1) maintains the limitation on the operation of Pt 14 in relation to industrial disputes, while s 200(2) is directed at limiting Pt 14 in relation to apparently genuine demonstrations or protests. The limitation with respect to the latter, however, is subject to the exceptions in s 200(3), (4) and (5). None of those subsections confers a power on a police officer to give a direction. Rather, each lifts the bar that s 200(2) otherwise imposes on giving directions under Pt 14 in relation to demonstrations or protests, stating that a police officer “is not precluded from giving a direction” to such a demonstration or protest in the enumerated circumstances. The source of the power to give a direction resides in s 197(1) and must be satisfied.

24. [70]

    As I noted above, ss 200(3) and (4) were inserted at the same time. In the second reading speech to the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, the Minister described the amending legislation as responding to a need to clarify the laws “in relation to unlawful interference with mining and other businesses or undertakings”. The Minister gave a number of examples of what he described as “unsafe protest activities causing severe disruption to lawful business activity and those that are clearly unlawful as they threaten the safety of others”, including where protesters had shut down operations by hanging from a construction structure and where protestors had scaled coal loaders, locked themselves onto access gates and erected structures to both hang from and block access to sites.

25. [71]

    As with s 197(1), the exception in s 200(3) rests on a police officer forming a belief on reasonable grounds. The subject of the belief is the necessity of a direction to deal with “a serious risk” to safety, either of a person or persons participating in the demonstration or protest or any other person(s). The examples the Minister gave in the second reading speech indicate the types of serious risk to safety of the protester or of others (including police) that the legislature had in mind as capable of grounding a reasonable belief as to the necessity of a direction. The plaintiff gave a further example of a protest coming into contact with a counter-protest on the same subject matter.

26. [72]

    The exception in s 200(4) rests not on belief but upon readily ascertainable matters: a demonstration or protest “is obstructing traffic”; the demonstration or protest is not an authorised public assembly for the purposes of Pt 4 of the Summary Offences Act (or is not being held substantially in accordance with an authorisation) (s 200(4)(a)); and the police officer in charge at the scene has authorised the giving of directions under Pt 14 in relation to the demonstration or protest (s 200(4)(b)) (emphasis added). Additionally, the direction must be limited to “the persons who are in fact obstructing traffic” (s 200(4)(c)), which effectively confines the scope of any group direction that may be given.

27. [73]

    There was a difference between the parties as to whether “traffic” in s 200(4) includes pedestrians on a road-related area. The defendant submitted that “traffic” bears that broader meaning, relying upon the inclusion of “a road related area” in the definition of “public place” in s 3 of LEPRA, the inclusion of “pedestrian traffic” in the definition of “traffic” in s 4 of the Road Transport Act, and the ordinary meaning of the word as connoting both persons and vehicles. However, as the plaintiff submitted, the use of “traffic” in contradistinction with “a person or persons” in s 197(1)(a), which also deals with obstruction, tells against the defendant’s construction. Given “road related area” is included in the definition of “public place” in s 3 of LEPRA, obstructing pedestrians in such an area would be covered by the reference to obstructing “another person or persons” in s 197(1)(a). In circumstances where other definitions from the Road Transport Act were expressly picked up in s 3 of LEPRA, the absence of a cross-reference to the definition of “traffic” in that Act also tells against an intention that the word have that meaning, as opposed to its ordinary meaning as considered in the context of Pt 14.

Section 214B of the Crimes Act

1. [74]

   I noted above that the Places of Worship Amendment Act enacted two primary provisions: s 200(5) of LEPRA and s 214B of the Crimes Act. As it was enacted at the same time and is referred to in s 200(5)(a)(ii), it is important to set out s 214B of the Crimes Act:

Section 200(5) of LEPRA

1. [75]

   The parties’ submissions on construction were largely focussed on two aspects of s 200(5). The first aspect was the meaning of the phrase “in or near a place of worship” in s 200(5)(a)(ii). The second was the implication of that condition, if satisfied, on the application of s 197.

2. [76]

   The plaintiff submitted that “in or near a place of worship” is a geographically loose phrase that is readily capable of satisfaction. If the conditions in s 200(5) were otherwise satisfied, a police officer would not be precluded from giving a direction to a demonstration or protest if the officer believed on reasonable grounds that the conduct of participants has one of the effects in s 197(1)(a)-(c) on any person or persons in the public place.

3. [77]

   The defendant, on the other hand, submitted that the phrase “in or near a place of worship” is more narrowly confined when considered in context with s 197 of LEPRA and also s 214B of the Crimes Act which was enacted at the same time. The defendant submitted that the identification in s 200(5) of a place of worship as the place “in or near” which a protest is occurring provides the frame of reference for the exercise of the power in s 197, narrowing the scope of its application to circumstances where a protest is, as was put in the defendant’s written submissions, “sufficiently physically close [to a place of worship] so as to: (a) obstruct a person from accessing or leaving the place of worship, or attempting to do so; (b) harass or intimidate a person attending, accessing or leaving the place of worship, or attempting to do so; or (c) cause fear in a person of reasonable firmness attending, accessing or leaving the place of worship, or attempting to do so.” This construction was said to be supported by the principle of legality and s 31(1) of the Interpretation Act 1987 (NSW). The defendant submitted that it followed, either as a matter of construction or practicality, that if s 200(5) were relied upon, the affected persons in s 197(1)(a)-(c) would necessarily be people accessing, using, or leaving a place of worship, or attempting to do so.

4. [78]

   The competing constructions of s 200(5) bring to mind the following observations of Gageler J in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [75] (footnotes omitted):

5. [79]

   His Honour at [77] set out the approach that a court should adopt by reference to the following statement of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [42] (footnotes omitted):

6. [80]

   The conventional and required approach to construing s 200(5) turns on the text read in context and in accordance with its purpose: Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23; 99 ALJR 955 at [34].

7. [81]

   As the defendant submitted, s 200(5) does not effect a blanket prohibition on non-authorised demonstrations or protests in or near places of worship, nor does it in terms authorise the giving of a direction. Like s 200(3) and s 200(4), the subsection provides that a police officer “is not precluded” by s 200(2) from giving a direction under Pt 14 in relation to a demonstration or protest. If the conditions in s 200(5) are satisfied, a police officer may give a direction in relation to a protest only if s 197(1) is also satisfied, and subject to the reasonableness requirement in s 197(2).

8. [82]

   The conditions in s 200(5) are formulated by reference to particular characteristics of the demonstration or protest, each of which must be satisfied in order for the provision to lift the bar in s 200(2). The only positive condition, in s 200(5)(a)(ii), is that the demonstration or protest “is occurring in or near” a particular location, namely, a place of worship as defined in s 214B(4) of the Crimes Act. The exception is engaged if a demonstration or protest is occurring in or near that place and the other (negative) conditions are satisfied, namely that the demonstration or protest:

   1. (1)

      is not authorised under Pt 4 of the Summary Offences Act or is not being held substantially in accordance with an authorisation under that Part (s 200(5)(a)(i)); and

   2. (2)

      does not form part of an industrial action or an industrial dispute or campaign (s 200(5)(b)(i)); and

   3. (3)

      is not occurring “at or outside Parliament House or an office of a member of Parliament” (s 200(5)(b)(ii)); and

   4. (4)

      is not in accordance with the consent or other authority of the Commissioner of Police or of the person apparently in charge of the place of worship (s 200(5)(b)(iii)).

9. [83]

   As I have discussed above, Pt 4 of the Summary Offences Act provides for a formal mechanism by which a public assembly may become “authorised”. The further reference to the consent or authorisation of the Commissioner of Police in s 200(5)(b)(iii) contemplates such consent or authority being given apart from under Pt 4. However, as Assistant Commissioner McKenna’s evidence makes plain, formal authorisation under Pt 4 would be the primary means by which such authorisation is obtained from the NSW Police Force: see also Kvelde at [273].

10. [84]

    The exception in s 200(5)(b)(i), which provides that a demonstration or protest is not subject to s 200(5) if it forms part of industrial action or an industrial dispute or campaign, is the only condition that is expressly directed to the subject matter of the demonstration or protest. The exception otherwise applies to non-authorised demonstrations or protests irrespective of the underlying subject matter. That the primary concern of the provision is not with the content of a protest but with its conduct in a particular location is supported by s 200(5)(b)(ii), which provides that the exception does not operate if, whilst occurring in or near a place of worship, the demonstration or protest is also occurring at or outside Parliament House or the office of a member of Parliament.

11. [85]

    Turning then to the terms of s 200(5)(a)(ii), the definition of “place of worship” in s 214B(4) of the Crimes Act identifies a building or structure ordinarily used for a particular purpose, namely, worship. It is perhaps implicit in the concept of use in the definition that the building or structure is used by persons for that purpose. However, by contrast with s 214B, s 200(5) does not refer expressly to such persons or their attendance at the place for that purpose.

12. [86]

    The plaintiff submitted that, reading s 200(5)(a)(ii) in accordance with its terms, the exception involved a potentially very broad incursion on a large geographic area. Relying on the map of the Sydney CBD (see [19] above), he submitted that the condition would be productive of difficulty for both police officers and protestors in terms of determining the precise outer boundary of “near”.

13. [87]

    In evaluating this submission it is necessary to keep in mind that the function of s 200(5) is to lift the bar on the exclusion, in s 200(2), of the power to give a direction in relation to an apparently genuine protest, demonstration, procession or assembly. In order to give such a direction, a police officer must be satisfied of the matters in s 197(1) by reference to the behaviour or presence of persons engaged in a protest in a public place. If the bar is lifted under s 200(5), the public place by reference to which the assessment in s 197(1) is to be made is itself “in or near a place of worship”. As the Attorney General stated in the second reading speech:

14. [88]

    The geographic indeterminacy of “near”, on which the plaintiff relied, is reduced by reason of its use as part of the compound phrase “in or near” in s 200(5)(a)(ii). In Virgin Blue v FCT, which concerned the phrase “at, or in the vicinity of”, Jessup J observed that the disjunctive “or” can be used “as a term of extension, but keeping within the general sense, and responding to the same statutory purposes, as implied by the core provision”: at [66]. Here, the subject of “in or near” is a building or other structure, which has a specific and confined geographical location. In my view, having regard to the compound phrase “in or near”, the condition in s 200(5)(a)(ii) is directed at a protest or demonstration that is occurring in close physical proximity to a place of worship (if it is not occurring within the place of worship).

15. [89]

    The plaintiff submitted that “in or near” may be contrasted with the more geographically confined “at or outside”, being the compound phrase in s 200(5)(b)(ii). That a protest may simultaneously be in or near a place of worship and at or outside Parliament House or an office of a member of Parliament indicates that “in or near” is not confined to the area immediately outside the place of worship; as with the use of “near” in s 197(3), it is not possible precisely to delineate its limits. Nonetheless, “in” necessarily confines the scope of “near” in s 200(5)(a)(ii), and having regard to context and purpose I do not consider that the geographic connection is as broad or indeterminate as the plaintiff suggested.

16. [90]

    In relation to context and purpose, the construction of “in or near a place of worship” as connoting a closer degree of physical proximity than the construction for which the plaintiff contended is consistent with the purpose of s 200(5) as an exception to what is otherwise a broad exclusion on the application of Pt 14 in s 200(2), viewed alongside the other exceptions in s 200(3) and s 200(4). It is also supported, as the defendant submitted, by reference to the conduct enlivening the power to give directions in s 197(1), such that a subject person may be “near” a place of worship if they are sufficiently close that their behaviour or presence can, in the reasonable belief of a police officer, have the requisite effect on persons in or near that place: obstructing, harassing, intimidating, or causing fear. Further contextual support is found in:

    1. (1)

       s 200(5)(b)(iii), which provides that the consent or other authority of “the person apparently in charge of the place of worship” will disapply the exception. That the consent of the person in charge of the place of worship can operate to disapply the exception suggests that the intent of the provision is directed at protest activity that is both proximate to the place of worship and of more than passing duration; and

    2. (2)

       s 214B(1) of the Crimes Act, which uses the same compound expression as an element of the offence: the person engaging in the offending conduct must be “in or near a place of worship”. Although it was inserted into the Crimes Act, s 214B was enacted in the same amending legislation as s 200(5) and forms part of the legislative context: Registrar of Births, Deaths and Marriages (NSW) v Norrie (2014) 250 CLR 490; [2014] HCA 11 at [18], [37]. The Attorney General said the following in the second reading speech about the same formulation in s 214B(1):

17. [91]

    In Kvelde, Walton J considered the phrase “on or near” in s 214A of the Crimes Act, which creates offences in relation to damage or disruption to a “major facility”. The term “major facility” is defined in s 214A(7), and includes a railway station or other public transport facility prescribed by the regulations, a private port within the meaning of the Ports and Maritime Administration Act 1995 (NSW), or another port prescribed by the regulations, or an infrastructure facility. Section 214A(1) provides:

18. [92]

    In Kvelde, Walton J concluded that s 214A(1)(c) was invalid in part and that s 214A(1)(d) was invalid in its entirety, on the basis that they impermissibly infringed the implied freedom. Relevantly for present purposes, his Honour considered the meaning of “on or near” in s 214A(1) and made the following observations:

    1. (1)

       The word “near” in the chapeau to s 214A(1) was juxtaposed with the word “on”, with the “or” that separated those two words being “plainly disjunctive”: at [168]. His Honour continued at [168]:

    2. (2)

       So considered, the word “near” was not one of restraint but extended the operation of the word “remain”, “so as to give effect to the intention of the legislature to cover conduct taking place outside the boundaries of the major facility”: at [169].

    3. (3)

       Whether a person is “near” a place is ultimately a question of fact and degree which must be resolved in the circumstances of the particular matter: at [170]. That said, his Honour accepted that the word was “suggestive of some physical proximity to any part of the major facility”:

19. [93]

    It is apparent, as the defendant submitted, that s 214B of the Crimes Act and s 200(5) of LEPRA were intended to be complementary, with s 214B(1) creating an offence in relation to particular conduct in or near a place of worship, and s 200(5) enabling the giving of a direction in relation to protest activity, where a protest is occurring in that same place. The proximity that is required in s 214B(1) for a person to be “in or near a place of worship” reasonably informs, as a matter of context, the use of the same phrase in s 200(5), which was enacted at the same time.

20. [94]

    That said, the offences in s 214B(1) are directed specifically at conduct affecting persons who are accessing or leaving, or attempting to access or leave, a place of worship. Persons accessing or leaving that place are the subject of the conduct that is proscribed by reference to its impact upon them: intentionally blocking or impeding their access or egress, or intimidating or harassing them in that process. Section 214A is also directed among other things at the conduct of a person “on or near” a major facility that has particular consequences including for persons who are seeking to access the major facility.

21. [95]

    The exceptions in s 200(3) and s 200(4) of LEPRA are also formulated by reference to the particular consequences of the conduct of those participating in the protest or demonstration: creating a serious risk to the safety of a person (in the reasonable belief of a police officer), or obstructing traffic.

22. [96]

    By contrast, s 200(5) is not formulated by reference to particular causal effects, or by reference to such effects on any particular class of person (or thing). If a demonstration or protest is occurring in or in close physical proximity to a place of worship (and the other conditions in s 200(5) are satisfied) the inquiry at which s 197(1) is directed is undertaken by reference to that place, and to affected persons who are in (or near: see s 197(3)) that place at the time the protest is occurring, for whatever purpose those persons might be present.

23. [97]

    By way of illustration of the difference, s 214B(1)(a) applies to a person in or near a place of worship engaging in particular conduct, namely, “intentionally” blocking, impeding or hindering persons accessing or leaving a place of worship without reasonable excuse. The Attorney General said of the provision in the second reading speech:

24. [98]

    On the other hand, an unauthorised protest or demonstration occurring in that same location would satisfy the conditions of s 200(5), even if the protest or demonstration is not directed to the place of worship or to persons seeking to access or leave it. The limitation in s 200(2) being lifted on the basis of the location of the protest (subject to the other conditions), a police officer may give a direction under s 197 provided that they believe on reasonable grounds that persons in or near the place are relevantly affected by the behaviour or presence of protest participants, irrespective of whether the affected persons are seeking to access the place of worship.

25. [99]

    This last point highlights the difficulty with the construction of s 200(5) for which the defendant contended. The defendant did not submit that the exception in s 200(5) was itself limited to persons attending or leaving a place of worship. Rather, it relied on the combination of s 200(5) and s 197. The defendant submitted that the subject persons engaging in the conduct must be sufficiently proximate to the place of worship as to engage one of the paragraphs in s 197(1) with respect to persons in or near that place, in the reasonable belief of the police officer. So much may be accepted. What was said to follow, however, was that where the public place is “in or near a place of worship”, the persons affected by the conduct enumerated in s 197(1) would necessarily be limited to persons attending or leaving the place of worship.

26. [100]

    I do not accept that submission. Section 197 of LEPRA is a power of general application, conferring the power to give a direction if the conditions for its exercise are satisfied. The exceptions in s 200(3), (4) and (5) permit police officers to exercise that power in relation to a protest or demonstration in the circumstances for which the exceptions respectively make specific provision. Provided the conditions of one or more of the exceptions are satisfied, the exclusion in s 200(2) will not operate and the power in s 197 is to be exercised in accordance with its terms. As the Attorney General stated in the second reading speech, “the ordinary thresholds for move on directions will apply”.

27. [101]

    Although s 197(1) is formulated by reference to conduct that is self-evidently similar to the conduct proscribed in s 214B(1), it applies generally to persons who are in or near the relevant public place at the time the subject person is engaging in the relevant conduct. Where the public place is “in or near a place of worship”, affected persons could well include those attending or leaving a place of worship; the conduct of a protest could, in the reasonable belief of a police officer, obstruct such persons, or constitute harassment or intimidation of them, or cause them fear. That would certainly be the case, practically speaking, if a demonstration or protest were occurring in a place of worship. However, once the bar in s 200(5) is lifted with respect to a protest occurring “in or near” a place of worship, the inquiry in s 197 is not confined to those persons.

28. [102]

    A limitation of the nature for which the defendant contended would have to reside in the requirement of nearness in s 200(5)(a)(ii), construed as not only locating the protest but also identifying the purpose for which affected persons, being the class to which s 197(1) refers, are in the area. Even making due allowance for s 31 of the Interpretation Act, which requires that Acts be construed so as not to exceed the legislative power of Parliament, construing the condition in that way would involve an impermissible judicial gloss of the type that French J cautioned against in International Finance Trust Co v New South Wales Crime Commission (see [79] above). Although I consider that the words “in or near a place of worship” reasonably limit the place in the manner I have outlined above, they do not also operate to circumscribe the class of affected persons in s 197. That construction of s 200(5) would involve too marked a departure from the text of the provision.

29. [103]

    In summary, then, the exception in s 200(5) of LEPRA applies when the apparently genuine protest, demonstration, procession or assembly is occurring in a particular place, namely a public place that is “in or near” a place of worship, subject to the other requirements of that subsection. The phrase “in or near” requires close physical proximity between the protest and a building or other structure ordinarily used for worship, albeit less proximity than is contemplated by the phrase “at or outside”. The outer boundary of “in or near” is otherwise left undefined, being a question of fact and degree. Once s 200(5) is enlivened, a police officer may only give a direction to persons in relation to a demonstration or protest if the officer believes on reasonable grounds that the behaviour or presence of participants is having at least 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 constitutional inquiry

1. [104]

   I have set out above the relevant constitutional inquiry (at [8]). As Gageler CJ summarised it in Ravbar at [27]:

2. [105]

   In relation to the third part of the inquiry, the recent decisions of the High Court in Babet and Ravbar have considered the continuing applicability of structured proportionality, which was first adopted by a majority of the High Court in McCloy and involves addressing three further questions (see McCloy at [2]):

3. [106]

   As the Court of Appeal (Kirk, Stern and McHugh JJA) observed in the recent decision of Smith v Blanch at [139], although structured proportionality was referred to in McCloy “as an analytical tool rather than as a doctrine” (at [72]), it came to be applied by a majority of the Court in cases after McCloy as the primary tool employed in cases involving the implied freedom. In Babet, however, Gageler CJ and Jagot J said the following at [49] (Gordon J and Beech-Jones J agreeing at [72] and [242] respectively) (footnotes omitted):

4. [107]

   The plaintiff submitted that the decision in Babet and the subsequent decision in Ravbar (in which the above passage was echoed at [29] (Gageler CJ), [343] (Jagot J) and [427] (Beech-Jones J)) have shifted the focus of the constitutional inquiry away from proportionality, and in the direction of a calibrated inquiry of the nature that Gageler J articulated in Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35 (“Tajjour”). His Honour there developed the observation of Deane and Toohey JJ in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 169; [1992] HCA 45, that “a law whose character is that of a law with respect to the prohibition or restriction of [political] communication … will be much more difficult to justify ... than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications”. In Tajjour at [151], Gageler J stated:

5. [108]

   Developing this analysis in Brown, his Honour stated at [165]:

6. [109]

   The plaintiff referred to Gageler CJ and Jagot J adopting the calibration analysis in Babet at [48] and submitted that this was the lens through which the inquiry should now be undertaken. Their Honours were specifically addressing whether the law in issue impermissibly burdened the freedom of electoral choice, but subsequently applied the same reasoning as determining the implied freedom inquiry that also arose in that case. Their Honours stated (see also Ravbar at [29] (Gageler CJ)):

7. [110]

   The approach for which the plaintiff contended may be in the ascendancy but it is not clear to me, at least from Ravbar, that it has been endorsed by a majority of the Court as the determinative analysis on the third question. Three members of the Court applied the structured proportionality analysis, in circumstances where the parties had framed their arguments by reference to that approach and it had not been suggested that it was inapposite (at [215] (Edelman J), [309] (Gleeson J), [427] (Beech-Jones J)). Further, as Jagot J explained in Ravbar, structured proportionality is not of itself inconsistent with calibrating the degree of scrutiny to the purpose of the law and the means the law uses to achieve a purpose: at [344].

8. [111]

   Gageler CJ observed in Ravbar at [29] that “[u]nresolved differences as to how the third stage of the inquiry is best undertaken cannot undermine the common ground upon which those differences have emerged – that the inquiry must be undertaken”. The Court of Appeal in Smith v Blanch summarised the position at [142]:

Does s 200(5) burden the implied freedom of political communication?

1. [112]

   The first question is whether s 200(5) of LEPRA “effectively burden[s] freedom of communication about government or political matters either in its terms, operation or effect”: Lange at 567. In Monis at [108], Hayne J stated that the expression “effectively burden” in the context of the implied freedom “means nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or content of political communications”. That effect “is in turn gauged by nothing more complicated than comparing: the practical ability of a person or persons to engage in political communication with the law; and the practical ability of that same person or those same persons to engage in political communication without the law”: Brown at [181] (Gageler J).

2. [113]

   In McCloy, Gageler J cautioned against allowing the simplicity of the first question to detract from its importance: at [127]. His Honour continued:

3. [114]

   The question of burden is to be determined by reference to the law’s effect on political communication as a whole: APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 at [381]; Unions NSW (2013) at [35]-[36], [119]; Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 at [20]. Nonetheless, evidence of the operation of the impugned law in individual cases “may provide useful examples of the statute’s practical effect, and therefore of the burden the statute may have on the freedom”: Brown at [90] (Kiefel CJ, Bell and Keane JJ).

4. [115]

   The relevant practical operation of the provisions in question “is the practical operation they have when applied according to their proper construction, not some operation hypothesised on there being some misapplication or misconstruction”: Brown at [307] (Gordon J), referred to with approval in Burton v Director of Public Prosecutions (NSW) (2022) 110 NSWLR 145; [2022] NSWCA 242 at [47] (Kirk JA, Bell CJ and Leeming JA agreeing). In this respect, I have placed no weight on the evidence of the plaintiff, or the other witnesses called on his behalf, as to how each anticipated the police would use the power in s 197 in the event that the exception in s 200(5) was enlivened. There was a similar element in the plaintiff’s submission regarding the operation and effect of s 200(5), describing it in his written submissions at [41] as follows:

5. [116]

   I consider that this paragraph overstates the burden of s 200(5) of LEPRA in so far as it does not engage with the narrowing effect of the word “in” on the meaning of the compound phrase “in or near”. Further, it does not bring to account s 197, which must be satisfied even where the bar on the exclusion in s 200(2) is lifted by reason of s 200(5).

6. [117]

   The plaintiff’s central point was that the exception operates by reference to places that are generally central to civic life and in relation to an activity (protesting) inherent in which is the capacity to ground a reasonable belief as to the matters in s 197(1)(a)-(c). The evidence tendered by the plaintiff, including the map of places of worship and affidavit material deposing to common protest locations, demonstrated a clear locational overlap between the two (see [16]-[21]). Senior counsel for the plaintiff submitted by reference to the photographs of protests included in the media articles to which I have referred above (at [18]) that it required very little imagination to understand that obstructing people is something that is part and parcel of the kind of protest activity shown in those photographs. He continued:

7. [118]

   The plaintiff submitted that the burden imposed by s 200(5), as in Brown and in Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 (“Clubb”), was direct and significant, operated in a site-specific way, and was relevantly discriminatory in a number of ways. The defendant submitted that the analogy to these cases, and Brown in particular, was inapt.

8. [119]

   There are a number of relevant differences between s 200(5) and the legislative regimes in issue in Brown and Clubb in terms of the burden imposed. The provisions in Clubb, most obviously, effected a direct prohibition under which it was an offence to engage in prohibited activities. Section 185D of the Public Health and Wellbeing Act 2008 (Vic) prohibited “communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety” within 150 m of premises at which pregnancy termination services were offered. Section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibited “protest[ing] in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided”. The State of Victoria accepted that the prohibition in its legislation could capture a broad range of communications and may apply to communications concerning government or political matters even though it was not expressly targeted at such communications: at [43]. Similarly, the State of Tasmania accepted that the prohibition on protests burdened the implied freedom: at [119].

9. [120]

   As I have noted above, the provisions of Pt 14 of LEPRA are not directly of that character: the power of police to give a direction is coercive, but does not necessarily prohibit behaviour, nor is it necessarily penal in nature. In this respect the provisions are more akin to those which were in issue in Brown. I have said something already about the provisions in Brown above (at [61]). Sections 6(1)-(2) of the Tasmanian legislation (which the joint judgment defined as the “Protesters Act”) prohibited a protestor from entering or remaining on “business premises”, or carrying out an act on business premises, if doing so prevented, hindered or obstructed the carrying out of a business activity, and the protestor knew or ought to have known of that effect. Section 6(3) proscribed similar activity in respect of a “business occupier” in relation to a business premises, an entrance to or exit from business premises, or a business access area. Section 11(1) provided that a police officer may direct a person on business premises to leave if the officer believed on reasonable grounds that the person had contravened or was contravening ss 6(1)-(3). Section 8(1) provided that a person must not remain on a business area in relation to business premises after having been directed by a police officer under s 11 to leave the business area, or enter on a business access area in relation to business premises within four days after having been directed by a police officer under s 11 to leave the premises or area.

10. [121]

    In relation to the operation of the provisions, Kiefel CJ, Bell and Keane JJ stated:

11. [122]

    The combined effect of the provisions was “immediate”, enabling the bringing of a protest of an entire group of persons to a halt. Its effect would also extend over time, by reason of provisions such as s 8(1): at [86]. The circumstances of the plaintiffs in Brown demonstrated how the freedom was burdened, the joint judgment observing that even if they were not on business premises or in a business access area “the police officers who arrested and removed them were unable to correctly determine whether they were on those premises or in that area”. The plaintiffs’ protests and their communications to others about the forest operations were thus silenced: at [91]. As their Honours further observed, the Protesters Act imposed a burden on the freedom solely in relation to protesters: at [92].

12. [123]

    Gageler J also emphasised that the extent of the practical constraint on the making and receipt of communications capable of bearing on electoral choice was to be seen in the ambit of the discretions conferred on police officers under the Act and the consequences flowing from the exercise of those discretions. His Honour stated:

13. [124]

    His Honour described the burden as “direct, substantial and discriminatory – facially against political communication and in its practical operation more particularly against political communication expressive of a particular political view”: at [199]. Nettle J reached a similar conclusion, describing the provisions as being of such breadth that the likelihood of them operating in practice so as to burden the implied freedom to a significant extent could not be discounted: at [269].

14. [125]

    The move-on directions in issue in Brown operated by reference to conduct in a place, the confines of which were less geographically determinate than is the case with s 200(5) of LEPRA, and rested on the formation of belief by a police officer about whether a protester has committed or was committing an offence in such a place. As Gageler J observed in Brown:

15. [126]

    That said, as was the case with the provisions in Brown and the Tasmanian legislation in Clubb, s 200(5) of LEPRA is expressly directed at particular conduct, namely, apparently genuine demonstrations or protests, processions or organised assemblies. The activities at which the provision is directed have an inherently political content, with Gageler J describing protest activities in Clubb as “the oldest and most orthodox form of public expression of political dissent in a representative democracy” (at [164]). Without directly prohibiting such activities, where s 200(5) applies it removes a limitation on police giving directions in relation to an apparently genuine demonstration or protest, procession or public assembly, being established forms of political communication. It applies where there is close physical proximity between the protest or demonstration and the place of worship. By contrast with the provisions in Brown and Clubb, s 200(5) is not confined by reference to the subject matter of a demonstration or protest, or by reference to persons attending or leaving the place of worship, or by reference to the times at which such persons would likely be attending or leaving.

16. [127]

    If s 200(5) applies, a police officer may give a direction under s 197 if the officer is satisfied that the behaviour or presence of persons engaging in the protest in a public place is having a prescribed effect on others in or near that place. Where the police officer forms a reasonable belief that the conduct of protesters engaged in a protest in that place is having one or more of the prescribed effects in s 197(1), the officer may exercise the power to give a direction, subject to that direction satisfying s 197(2). A direction can, as the plaintiff submitted, extend to moving a protest on from a location, or putting an end to the protest. As in Brown, judicial review of a direction would not likely be possible before this occurs: see Brown at [78]-[79] (Kiefel CJ, Bell and Keane JJ). Persistent refusal to comply with a direction constitutes an offence.

17. [128]

    The plaintiff submitted, by reference to the negative condition in s 200(5)(b)(i), that the provision privileges communication about industrial matters and those who would be communicating in respect of them. The plaintiff also relied on s 200(5)(b)(iii)(B), submitting that conferring on a person with apparent authority over the place of worship the capacity to consent to or authorise the protest could have a similarly discriminatory effect, with such consent unlikely to be forthcoming for groups wishing to protest on issues contrary to the tenets of the religion practised in the relevant place of worship.

18. [129]

    I do not find that these matters add significantly to the effective burden that s 200(5) otherwise imposes on the implied freedom of political communication, noting that the question of burden is to be determined by reference to its effect on political communication as a whole. As I have already noted, apart from industrial action, s 200(5) does not directly consider the underlying subject matter of the protest: see LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18 (“LibertyWorks”) at [177] (Gordon J), Clubb at [54]-[55] (Kiefel CJ, Bell and Keane JJ). That an individual person apparently in charge of a place of worship might consider the underlying subject matter in deciding whether to agree to protest activity in particular cases does not render the burden on the implied freedom as a whole discriminatory in the sense that Gageler J described it in Brown.

19. [130]

    The defendant submitted that any burden imposed by s 200(5) was “significantly diminished” by a number of factors. Some of the factors on which the defendant relied rested on the narrower construction of s 200(5) read with s 197 that I have not accepted, whereby the power to give a direction is only enlivened if a police officer reasonably believes that protesters “are obstructing, harassing or intimidating persons seeking to access a place of worship (including worshippers), or inciting such persons of reasonable firmness to fear”.

20. [131]

    The burden of the impugned law “must be assessed by reference to the restraints which the law – understood as the common law, equity and statute law – already imposes”: Farm Transparency International Ltd v State of New South Wales (2022) 277 CLR 537; [2022] HCA 23 (“Farm Transparency”) at [37] (Kiefel and Keane JJ); see also at [158] (Gordon J) and [223] (Edelman J). As Gageler J observed in Brown at [186], an impugned law does not have the effect of constraining the ability of persons to engage in a form of political communication if those persons would be prohibited by some other valid law from engaging in that form of political communication in any event: see also [259] (Nettle J), [357] (Gordon J), [557] (Edelman J).

21. [132]

    The defendant submitted, and the plaintiff accepted, that s 200(5) must be seen in the context of the existing exceptions in s 200(2) to which there has been no challenge, namely s 200(3) and s 200(4). To the extent that conduct the subject of s 200(3) and s 200(4) occurs in the context of a demonstration or protest occurring in or near a place of worship, those provisions already lift the limitation in s 200(2). As the defendant noted by way of example, the police relied on s 200(3) to give Ms Berkon a move-on direction from the Emanuel Synagogue in February 2025. That said, for the reasons I have outlined, the exception in s 200(5) is broader than s 200(3) and s 200(4), operating by reference to the location of the protest, as opposed to conduct occurring as part of a protest that has particular consequences.

22. [133]

    In terms of the types of conduct at which s 197(1)(a) is directed, the defendant referred to (and the plaintiff also acknowledged) a number of statutory provisions directed to obstruction of persons or vehicles. Apart from s 200(4) of LEPRA, which lifts the bar in s 200(2) in relation to obstruction of traffic, I have referred above to s 6 of the Summary Offences Act, which makes it an offence “wilfully” to obstruct in any manner the free passage of a person, vehicle or vessel in a public place without reasonable excuse. Additionally, cl 236 of the Road Rules 2014 (NSW) proscribes “unreasonably” obstructing the path of any driver or another pedestrian, with a maximum penalty of 20 penalty units. As the plaintiff submitted, the giving of a direction under s 197(1) does not require any relevant obstruction of a person or traffic to be wilful or unreasonable: cf Kvelde at [358].

23. [134]

    The defendant also relied on the law of public nuisance in relation to obstruction of a public place, which may arise depending on the degree and length of time and reasonableness of the obstruction. In my view public nuisance is of limited additional assistance having regard to the availability of s 200(4) of LEPRA, cl 236 of the Road Rules and s 6 of the Summary Offences Act.

24. [135]

    In so far as any relevant protest or demonstration is in or within the grounds of a place of worship, the defendant relied on the law of trespass, which is actionable without proof of damage and prohibits a “direct interference, either intentional or negligent, with possession of the land without the plaintiff’s consent or without lawful authority”: Brown at [383] (Gordon J). The defendant also relied on the law of private nuisance, which Gordon J described in Brown as prohibiting “a material interference, beyond what is reasonable in the circumstances, with the plaintiff’s use and enjoyment of the land or the plaintiff’s interest in the land”: at [385]. I accept that protest activity in a place of worship or within the grounds of such a place could well constitute a trespass, depending on the circumstances. As the plaintiff submitted, the range of conduct captured by s 197 of LEPRA, and to which s 200(5) may apply, is broader than would be the subject of the tort of private nuisance.

25. [136]

    The defendant did point to existing offences, to which there was no challenge, that could capture some of the conduct sought to be addressed in s 197, including assault in s 61 of the Crimes Act, and, of course, s 214B of the Crimes Act. However, such offence provisions operate more narrowly than s 197, being directed at intentional conduct having an actual effect on other persons; neither intention nor actual effect upon others is required to enliven the power in s 197(1) to give a direction, or for a person to commit the offence of persistently failing to comply with a direction. The absence of such requirements is consistent with the purpose for which s 197 and its predecessor provisions were enacted (see [43] above), the focus of the provision being de-escalation of a situation in a public place rather than criminalisation of the conduct.

26. [137]

    The defendant also relied on the non-application of s 200(5) if the gathering is an authorised public assembly for the purposes of Pt 4 of the Summary Offences Act and is being held substantially in accordance with an authorisation. In Kvelde at [34], Walton J observed that the operation of Pt 4 “may, in some respects, be beside the point so far as the burden on the implied freedom is concerned”, on the basis that “[t]he common law tradition is against the idea that freedom of political communication lies in the gift of the government”. The plaintiff made a similar point, submitting in chief that the implied freedom is not a freedom to communicate only when given permission to do so.

27. [138]

    Acknowledging the force of those submissions, I nonetheless take into account that, unlike in kvelde, the defendant led evidence in the present case about the operation of the regime under Pt 4 of the Summary Offences Act. I have earlier summarised the evidence of Assistant Commissioner McKenna. That evidence demonstrates that when authorisation was sought under Pt 4 in 2023 and 2024 — the plaintiff’s point being that it need not be — protests were authorised far more often than not. It is the case, as the plaintiff submitted, that the regime is less accommodating of what he and other deponents described as “snap protests”, which are held at short notice in response to a particular situation (Lees first affidavit at [27], [28]; Holcombe affidavit at [10]; Gibson affidavit at [20]; Murphy affidavit at [5]). Where less than seven days’ notice is given of a public assembly, it will not be authorised unless the Commissioner notifies the organiser that they do not oppose the holding of the assembly, or the organiser successfully applies to the Supreme Court for authorisation: Summary Offences Act, s 23(1)(f)(ii). Assistant Commissioner McKenna’s evidence indicates that such protests are also managed where practicable. Where more than 7 days’ notice is given, the Commissioner may seek, and the Supreme Court may grant, an order prohibiting the public assembly, which has effect according to its terms following Naser. However, I do not consider that this aspect of the regime contributes materially to the overall burden of s 200(5) of LEPRA.

28. [139]

    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?

1. [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]:

2. [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.

3. [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]:

4. [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]:

5. [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”.

6. [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.

7. [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?

1. [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. (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. (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.

2. [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”.

3. [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.

4. [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].

5. [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.

6. [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].

7. [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).

8. [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.

9. [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.

10. [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.

11. [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.

12. [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].

13. [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.

14. [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

1. [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.

2. [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.

3. [163]

   Accordingly, I make the following orders:

   1. (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. (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.