Jarrett v State of New South Wales

1. [1]

   THE COURT: On the evening of 14 December 2025 a shooting attack was carried out on a crowd that had gathered in a park at Bondi Beach to celebrate Chanukah, an important festival in the Jewish community. Fifteen people were killed and 40 others injured. NSW Police promptly characterised the event as a terrorist attack and special powers were engaged under the Terrorism (Police Powers) Act 2002 (NSW) (TPP Act).

2. [2]

   In the aftermath of the attack the State government perceived that community tensions were running high and that in such conditions public assemblies posed a threat to the cohesion and safety of the community. To address that perception, and related priority issues said to arise from the attack, the legislature passed the Terrorism and Other Legislation Amendment Act 2025 (NSW) (Amending Act). As a result of the Amending Act, the Commissioner of Police was authorised to make a declaration that the authorisation of holding of public assemblies within a declared area is restricted (“Public Assembly Restriction Declaration” or “PARD”).

3. [3]

   One aspect of the restriction triggered by a PARD is to exclude the option, ordinarily available to an organiser of a public assembly, of obtaining authorisation under Pt 4 of the Summary Offences Act 1988 (NSW) (Summary Offences Act) for an assembly held within the declared area (the Form 1 system). The ability to obtain an authorisation of that kind is an arrangement of longstanding in New South Wales: see Lees v State of New South Wales [2025] NSWSC 1209 (Lees) at [36]. Such an authorisation facilitates the lawful conduct of an assembly by conferring an immunity from certain prohibitions that would otherwise apply to participants in the assembly. Where a PARD is in place police officers may also exercise powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) which are not ordinarily available in relation to public assemblies. This includes the power to issue directions to move on when other people are being obstructed. The practical effect of a PARD is to discourage the holding of any public assembly within the declared area. This is the effect plainly intended by the legislature when it enacted the Amending Act and created the PARD scheme. By this device, the freedom to engage in one of the most significant forms of political communication, namely assembling with others in public about a common cause, is impaired.

4. [4]

   On 24 December 2025 the Commissioner of Police made such a PARD, declaring that the holding of public assemblies was restricted in a large area, comprising central Sydney and areas to the north, south, east and west of Sydney. The PARD was extended, subject to a revision of the area covered by declaration, on a number of occasions in January and February 2026. In broad terms, the effect of the PARD was that for several weeks following Christmas Eve it was not possible to obtain authorisation to hold a public assembly of any kind, in relation to any topic, subject matter or cause in large areas of Sydney and its surrounding suburbs. To the extent that such an assembly proceeded without authorisation, any participant was at risk of infringing various legal restrictions which are apt to be triggered when public assemblies occur. This included the risk of being subjected to move on directions if any other person was obstructed.

5. [5]

   When it comes to laws of this kind that restrict communication on governmental or political matters, the legislative power of the State is subject to a fundamental limitation, derived from the Commonwealth Constitution. Such a law is only valid if the burden on freedom of communication is imposed to fulfil a constitutionally legitimate purpose, and the means adopted are reasonably appropriate and adapted to achieve that purpose. The implied freedom reflected in this limitation is essential to the maintenance of the system of representative and responsible government for which the Constitution provides: Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43 (Brown) at [88]. Constitutional validity depends upon both the purpose of the law and the means of achieving that purpose being compatible with that system: see, for a recent summary of the guiding principles, Farmer v Minister for Home Affairs (2025) 99 ALJR 1408; [2025] HCA 38 (Farmer) at [1]. It is therefore not enough that the legislature perceives a pressing need to take strong legislative action in the public interest. The State operates within a constitutional system that gives priority to the freedom of political communication and restricts the power of the State to burden that freedom. That restriction is not, however, absolute. The Constitution compels close scrutiny by the courts to enforce that constitutional limitation: Farm Transparency International Ltd v State of New South Wales (2022) 277 CLR 537; [2022] HCA 23 (Farm Transparency) at [77].

6. [6]

   The impugned provisions of the Amending Act restrict the freedom of political communication in a constitutionally impermissible way. It is not a legitimate purpose, in the constitutional sense, to seek to preserve social cohesion by discouraging all forms of public assembly across a nominated geographical area and irrespective of the purpose of the public assembly and the actual impact (if any) such an assembly may have on social cohesion. Even if that were a legitimate purpose, compatible with the system of representative and responsible government, the means chosen by the legislature are not reasonably appropriate and adapted to achieving that purpose. The PARD scheme is a blunt tool. It does not require, or even allow for, consideration of the purpose, characteristics or conduct of any particular public assembly caught by a PARD or the nature or severity of any threat to the community that could be said to arise from any particular assembly. It is not enough that the legislature perceived the need for strong action to preserve the cohesion and safety of the community in the wake of an exceptionally traumatic public event. The system of government established by the Commonwealth Constitution does not permit the State to pursue such an objective by authorising the executive to impose such a sweeping and indiscriminate restriction on all public assemblies.

7. [7]

   Although the PARD first made on 24 December 2025 has now ceased to apply, there remains a justiciable controversy, apt to be quelled, about the validity of the provisions that enabled the PARD to be made and that attach legal consequences to such a PARD. The plaintiffs had standing to bring these proceedings when they were commenced and they continue to have standing to maintain the proceedings. A Chapter III matter persists and requires resolution. The declarations of invalidity sought by the plaintiffs can and should be made.

Procedural history and parties

1. [8]

   The proceedings were commenced by summons filed on 7 January 2026. On 29 January 2026, Bell CJ made orders removing the proceedings from the Common Law Division to the Court of Appeal. The hearing of the matter on 26 February 2026 proceeded by reference to an amended summons filed, pursuant to the Court’s leave, the following day. By the amended summons Elizabeth Ann Jarrett, Joshua Lees and Paul Silva (together, the plaintiffs) seek declarations that the following provisions (impugned provisions) impermissibly burden the implied freedom of communication on government and political matters and are invalid:

   1. (1)

      Pt 2, Div 3A of the Terrorism (Police Powers) Act 2002 (NSW) (TPP Act) or, in the alternative ss 23B(2), 23C and 23D of the TPP Act;

   2. (2)

      section 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA); and

   3. (3)

      sections 27A and 27B Summary Offences Act.

Submissions of amicus curiae

1. [9]

   At the hearing on 26 February 2026 the Court granted leave for Professor Ben Saul (the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism) to participate in the proceedings as amicus curiae, with such participation confined to the provision of written submissions. Those written submissions were primarily directed to the recognition of the right to peaceful assembly in international law. As argument transpired between the parties, that was not a perspective that was shown to be significant to resolving the issues of Australian constitutional law that require determination in this matter. Nor do we consider it necessary to address in any detail the recognition of the right to peaceful assembly in international law. We do however acknowledge the contribution which Professor Saul sought to make as amicus curiae.

The plaintiffs and their protest activities

1. [10]

   The relevant facts about the backgrounds and activities of each of the plaintiffs were largely agreed by the parties.

2. [11]

   Ms Jarrett was born in Grafton on Bundjalung Country. Bowraville on Gumbaynggir Country is her home community. Ms Jarrett is a member of a group known as “Blak Caucus” and purports to bring the present proceedings on behalf of that group. Blak Caucus is a group made up of First Nations activists who organise protest rallies, cultural events and other campaigning events in Sydney. Ms Jarrett has been involved in various protests in the past. She regards protest as a critical tool to challenge the ongoing injustices faced by First Nations people, and she is concerned that the impugned provisions (in particular the increased police powers to give directions) will disproportionality affect First Nations people.

3. [12]

   Mr Lees is also an experienced political activist. For a number of decades he has participated in and organised public assemblies, protests and marches. He is an organiser with the Palestinian Action Group (PAG), a coalition of individuals and organisations from different political backgrounds dedicated to the cause of a “Free Palestine”. One of the guiding principles of PAG is opposition to all forms of racism including Islamophobia and antisemitism.

4. [13]

   Mr Lees is familiar with the system of obtaining authorisation for public assemblies that he has organised. This involves submitting a “Form 1” document under Pt 4 of the Summary Offences Act to obtain authorisation for a public assembly. Mr Lees has been involved in, and helped to organise, many protests for causes including refugee rights, climate action and LGBT rights. His decades of experience as an activist includes participating in and organising marches on roads for the purpose of political protest.

5. [14]

   The third plaintiff, Mr Silva, is a Dunghutti man from Kempsey. Like the first plaintiff, Mr Silva is a member of Blak Caucus and purports to bring the proceedings on behalf of that group. Mr Silva is an activist and a “prominent voice in the fight against systemic injuries faced by First Nations people in Australia”, with a focus on Aboriginal deaths in custody, systemic racism and high incarceration rate. According to the agreed facts, Mr Silva believes that the act of “walking together, with Aboriginal people and non-Aboriginal people, is a critical and symbolic demonstration of a commitment to a shared future”.

6. [15]

   The following was agreed in relation to the plaintiffs:

7. [16]

   The history of protest activities by the plaintiffs and their present intention to protest in the future assume significance on the question of standing and for the resolution of the debate about the existence of a constitutional matter. We address those matters at the conclusion of our judgment.

Events before and after the PARD

1. [17]

   As described in the agreed facts, the attack at Bondi Beach on 14 December 2025 was “a heinous antisemitic terrorist attack against a public Chanukah celebration”. The attack had a “profound effect on the Jewish community”. It caused “deep emotional harm to the families of those killed (most of whom were Jewish)” and “nationwide horror”. No doubt deep emotional harm extended well beyond the families of those killed.

2. [18]

   The exceptional nature of the event is reflected in the governmental response. At 9.36pm on the night of the attack, the Commissioner of the NSW Police Force (Commissioner) gave authorisation of special powers under s 6 of the TPP Act. An authorisation of that kind authorises the exercise by police officers of special powers conferred by Pt 2 of the TPP Act to deal with terrorist acts. As required by s 6 of the TPP Act, the authorisation was given by the Commissioner on the basis that he was satisfied that there were reasonable grounds for believing that a terrorist act had been committed and was satisfied that the exercise of the special powers in Pt 2 of the TPP Act would substantially assist in apprehending the persons responsible for committing the terrorist act. The Commissioner gave a further authorisation on 15 December 2025. The exercise of those powers was not challenged in these proceedings.

3. [19]

   The Bondi Beach attack also prompted a swift and significant legislative response by the State. The Terrorism and Other Legislation Amendment Bill 2025 (NSW) (the Bill) was introduced to the Legislative Assembly on 22 December 2025. It was passed by the Assembly with amendments on the same day. The Bill was introduced to the Legislative Council on 23 December 2025 and passed on 24 December 2025. The Governor also gave assent on 24 December 2025, and on that day each of the impugned provisions came into effect. A detailed discussion of the impugned provisions, and the broader statutory context, is contained below at [43]-[82].

4. [20]

   The Amending Act introduced a new Div 3A into Pt 2 of the TPP Act. One of the provisions in the new Div 3A is s 23B of the TPP Act. Subsection (2) of s 23B provides that the Commissioner (or a Deputy Commissioner of Police) may, by written instrument, make a public assembly restriction declaration, being a declaration that an area described in the declaration is an area in which the authorisation of the holding of public assemblies is restricted.

5. [21]

   On 24 December 2025 at 5:23pm, the Commissioner of the NSW Police Force (the Commissioner) made such a declaration (the PARD). The PARD included the following declarations by the Commissioner:

6. [22]

   The NSW Police did not publish a map of the area to which the PARD applied in the period. The agreed facts and other evidence before the Court did not establish the precise scope of the area described in the PARD as made on Christmas Eve. It was common ground that the area encompassed all of the Sydney CBD and extended to substantial areas beyond Sydney, including apparently the entirety of the eastern suburbs, the north shore, northern beaches, the western and south-western suburbs and the Blue Mountains.

7. [23]

   Pursuant to s 23B(4) of the TPP Act, a PARD commences when the declaration is made and ends 14 days thereafter unless it is extended under s 23C (or is otherwise revoked or ceases to have effect under s 23F(3)(b)). On 6 January 2026 at 3:18pm, the Commissioner extended the Declaration for a further 14 days applying to the same geographical area.

8. [24]

   On 20 January 2026, the Commissioner extended and varied the PARD. The variation reduced the area to which the PARD applied, as shown in the shaded area of a map attached to the declaration. That shaded area covered the areas of the Eastern Suburbs Police Area Command and most of the CBD, excluding Hyde Park, but including Town Hall Square, Parliament House, Queen’s Square at the Supreme Court, and their respective surrounding streets. The shaded area attached to the PARD as extended and varied on 20 January 2026 is extracted below:

9. [25]

   On 29 January 2026, the Commissioner extended the PARD (in respect of that more confined area) until 3 February 2026. The Commissioner made a fourth extension of the PARD on 3 February 2026, which lasted until 17 February 2026. The PARD expired on that day.

10. [26]

    It was common ground at the hearing on 26 February 2026 that, given the expiry of the PARD, there was no capacity for the Commissioner to further extend that same PARD. It follows that, to the extent that the impugned provisions are triggered by the making of a PARD, that will only occur if and when a fresh PARD is made at some unknown point in the future. The impugned provisions are in this sense now dormant. The parties made competing submissions about the likelihood of a PARD being made again in the future. That is an issue that has at least potential bearing on the question of whether there is a Chapter III matter that the Court can and should resolve. The State submits that there is no more than a remote possibility that they may be enlivened again in the future. The plaintiffs say that this understates the likelihood that circumstances will arise again which are apt to prompt the making of a new PARD. We return to that topic below.

Forms of public assembly and particular examples

1. [27]

   Reference was made in the evidence and in the submissions of the parties and amicus curiae to various public assemblies and types of assemblies, both actual and hypothetical, for the purpose of illustrating the practical effect of the impugned provisions and assessing the true extent of the burden that they impose on the freedom of political communication. The plaintiffs also relied on evidence of particular public assemblies in which they have been involved as both illustrative of the impact of the impugned provisions and as bearing on questions of standing, jurisdiction and justiciability. However, putting those questions to one side, the plaintiffs’ challenge to the impugned provisions depends upon the application and potential application of those provisions to public assemblies generally, rather than to particular assemblies or types of assemblies. Given the nature of that challenge, it is sufficient to refer to only a small number of examples, and to make some general observations about the nature of public assemblies as a form of political communication.

2. [28]

   Time and place are critical considerations for those seeking to organise and participate in public assemblies to express a political position. This is in part a matter of logistical convenience. Holding a public assembly in a place that is convenient to access, congregate within and potentially march from is apt to maximise attendance and therefore public attention and political impact. Thus, for example, Hyde Park in central Sydney has become a popular point for the holding of public assemblies and the commencement of marches.

3. [29]

   The location of a public assembly may also have symbolic significance. Examples include gatherings outside Parliament House, Town Hall, the Harbour Bridge, the Opera House and the Law Courts Building. Assemblies at major public landmarks may carry additional impact because of the inherent status of those landmarks or because of their institutional significance. The subject matter of the protest may involve a particular connection with the chosen location, for example protests held outside Parliament against a law of the Parliament. There may also be a link between location and timing, for example assemblies held to coincide with particular meetings, court hearings or votes in Parliament. Timing may be important because the assembly is responsive to an event, such as a gathering to protest about the outbreak of a particular war. Timing may be significant for symbolic reasons, such as assemblies to mark a particular anniversary. For example, Australia Day has been marked in recent years by “Invasion Day” protests against the historical injustices suffered by First Nations people since 26 January 1788.

4. [30]

   Another example is provided by the experience of the third plaintiff, Mr Silva. Mr Silva’s uncle, David Dungay Jr, died in police custody. Mr Silva is regularly involved in rallies to express his views about Aboriginal deaths in custody, systemic racism and high incarceration rates of First Nations people. Mr Silva was involved in organising a rally on 18 January 2026 in Hyde Park to mark the tenth anniversary of Mr Dungay’s death, with the intention of marching on nearby roads. In advance of that rally a Form 1 was submitted seeking authorisation for the assembly under Pt 4 of the Summary Offences Act. As the PARD remained in place, and applied at the time to the roads around Hyde Park, authorisation for the proposed assembly could not be given. The assembly proceeded in the absence of authorisation. A gathering of people heard speeches in Hyde Park, after which Mr Silva invited the crowd to join him in marching to the Domain. Before such a procession could occur, a police officer at the scene directed Mr Silva and those with him to turn, and ten police on horseback blocked the path crowd’s path out of Hyde Park towards the Domain. Mr Silva then instructed the crowd not to march and instead to disperse. The crowd stopped marching and peacefully dispersed.

5. [31]

   On 31 January 2026, the PAG and Jews Against the Occupation ‘48 submitted a Form 1 to the NSW Police in respect of a planned public assembly at Town Hall along with a planned procession to Parliament House. The planned protest, on 9 February 2026, was timed to coincide with the visit to Sydney of the Israeli President Isaac Herzog. As the area in question was covered by the PARD, authorisation could not be given under Pt 4 of the Summary Offences Act.

6. [32]

   On 6 February 2026, the visit of President Herzog was declared to be a major event under the Major Events Act 2009 (NSW) (Major Events Act). That enlivened certain powers under the Major Events Act, including under s 46:

7. [33]

   On 9 February 2026, a large group of protestors, including each of the plaintiffs, assembled at Town Hall. Following various speeches and chants, parts of the group attempted to march to NSW Parliament House. Various participants in the assembly were pepper sprayed by police, twenty-seven people (including the first and third plaintiffs) were arrested and nine people were charged with offences.

8. [34]

   There is some ambiguity about the powers that were exercised by NSW Police in dispersing the crowd on that occasion. The relevant entry in the NSW Police computer system, “COPS”, suggests that the officers involved relied on public order powers to disperse people under s 87MA of LEPRA (see “LEPRA – PUBLIC ORDER – DISPERSE GROUP (S 87MA)”). However, evidence about how that entry came to be recorded suggests that the responsible officer, SC Walpole, chose from the pre-populated options based on her understanding of which description was likely to be the most appropriate. Other evidence about what occurred between police and attendees of the Herzog Protest suggests that the relevant officer, Inspector Coffey, issued what he considered to be a direction to attendees to leave under s 46 of the Major Events Act, not s 87MA of LEPRA. Although nothing decisive turns on the matter (for the reasons developed at the conclusion of our reasons), we prefer the evidence indicating that the relevant officer considered himself to be issuing a direction under s 46 of the Major Events Act. That evidence is sourced to the officer directly involved at the time and is more reliable than the inferences that can be drawn from the COPS entry.

Public assemblies as a form of communication protected by the implied freedom

1. [35]

   It is well recognised that public assemblies constitute a form of communication, and that public assemblies about government or political matters are a species of communication that engages the implied freedom in the Commonwealth Constitution. Participating in a public assembly has as an “inherently political content”: Lees at [126]. Actions as well as words can communicate ideas: Levy v The State of Victoria (1997) 189 CLR 579 at 594 per Brennan J, see also 613; [1997] HCA 31 (Levy). As McHugh J held in Levy at 622-623, “[s]igns, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions”. By the time Levy was decided, televised protests by non-verbal conduct had become a commonplace of political expression: at 595 per Brennan J. The ensuing decades have seen an increase in both the prevalence and variety of non-verbal forms of political communication.

2. [36]

   In Brown at [88], Kiefel CJ, Bell and Keane JJ described peaceful protest, along with other forms of free expression of political opinion, as being “indispensable to the exercise of political sovereignty by the people of the Commonwealth”. In Commissioner of Police v Gray [2020] NSWSC 867 at [59], Adamson J addressed the significance of public assemblies as a distinctive form of political activity, in rejecting a submission that it was sufficient for people interested in a particular cause, during a period of public health restrictions, to communicate via social media. Her Honour said:

3. [37]

   There is a great variety of forms of public assembly, even when confining consideration to assemblies which concern governmental and political matters. Static, peaceful vigils may serve political ends, often in a powerful way, without necessarily involving any element of distress or even inconvenience to others. Other public assemblies, particularly those that are styled as protests and those involving mobile crowds, may have a greater potential to cause disruption as well as adverse personal and political reactions in others in the community. They may provoke strong emotional responses, both positive and negative. That is often a key aspect of protest activity, and of political discourse more broadly. (To the extent that public assemblies may cause disruption and inconvenience to other members of the community, the Form 1 system operates as a means of planning for and managing such consequences.)

4. [38]

   Political expression may be erudite, respectful and sophisticated, but it may also be confronting, upsetting and provocative. Protests can involve appeals to emotion rather than reason. In Levy at 613 Toohey and Gummow JJ held that “[t]he appeal to reason cannot be said to be, or ever to have been, an essential ingredient of political communication or discussion”. The freedom of communication safeguarded by the Constitution encompasses the full spectrum of such communications. In Levy at 623 McHugh J held:

5. [39]

   In Clubb v Edwards; Preston v Avery (2019) 267 CLR 171; [2019] HCA 11 at [164] (Clubb), Gageler J (as the Chief Justice then was) described a protest, or public demonstration, as “the oldest and most orthodox form of public expression of political dissent in a representative democracy”. His Honour’s use of the word “dissent” in this context is noteworthy. Political communication, especially public protest, routinely involves the expression of displeasure with, and resistance to, the actions and views of political actors and other people in the community. One of the reasons the implied freedom of political communication is necessary is because without it people of different backgrounds or with different perspectives or information could be legally prevented from exchanging views on matters bearing on, among other things, electoral choices: see Levy at 622 per McHugh J. Such inhibition is at odds with the system of representative and responsible government established by the Constitution. The implied freedom of political communication thereby serves to safeguard against the systemic risk, in a majoritarian system, that political communications unhelpful or inconvenient or uninteresting to a current majority might be unduly impeded: Brown at [202]; Farm Transparency at [76]-[77].

6. [40]

   The expression of dissent about policies and attitudes associated with the majority or the prevailing orthodoxy is an archetypal form of protest. Such activity is often capable of causing in others (including potentially large parts of the community) a degree of annoyance, unease and even hostility, whether or not they are in the vicinity of the public assembly. Representative democracy, of its very nature, involves a contest of viewpoints and ideas. That can include the propagation of viewpoints and ideas considered by others to be unwelcome. In preserving the capacity for electors to gain an appreciation of the available alternatives, the implied freedom serves to secure the “true choice” that electors are intended to have pursuant to ss 7 and 24 of the Constitution: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; [1997] HCA 25 (Lange).

7. [41]

   Such qualities of dissent have been well recognised in other constitutional settings. In Terminiello v Chicago 337 US 1 (1948) at 4 Justice Douglas, in giving the opinion of the United States Supreme Court, observed that free speech, as protected by the First Amendment:

8. [42]

   We make these observations because we regard it as important to explain the principles underpinning the constitutional protection of public assemblies when assessing the burden on freedom of political communication imposed by the impugned laws and when testing the constitutional permissibility of the legislative purpose and the chosen legislative means.

The Statutory Framework

1. [43]

   The construction and operation of the impugned provisions must be understood before considering their constitutional validity: North Australian Aboriginal Justice Agency v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11]. Relatedly, a critical step in understanding the burden imposed by an impugned law on the freedom of political communication is to identify the relevant “baseline” for assessing the incremental burden imposed by that law. That baseline is the existing capacity to engage in communication of the relevant kind, having regard to laws that applied prior to the impugned law. It is therefore necessary to explain how the impugned provisions operate by reference to, and as a variation of, the pre-existing legal arrangements affecting the conduct of public assemblies. We begin by considering the relevant Acts as they existed before the relevant amendments introduced by the Amending Act.

2. [44]

   The object of the TPP Act, as reflected in its long title, is to confer special powers on police officers to deal with terrorist acts. A “terrorist act” for the purposes of the TPP Act is defined in s 3 as follows:

3. [45]

   This definition is intended to apply to terrorist acts occurring outside the State. The functions conferred by the TPP Act may therefore “be exercised whether or not the terrorist act has been, is being, or is likely to be committed in New South Wales”: s 4A.

4. [46]

   Section 6 of the TPP Act provides for the giving of authorisation, either orally or in writing, for the use of special powers. As explained further below, this provides one of the potential triggers for the marking of a PARD. Section 6 of the TPP Act provides:

5. [47]

   Prior to 14 December 2025, the power to make an authorisation under s 6 had only been exercised once. On the afternoon of the Lindt Café siege on 15 December 2014 an authorisation under s 6 was given.

6. [48]

   An authorisation may be given by the Commissioner of Police or by a Deputy Commissioner of Police: s 8(1). If an authorisation is sought urgently and it is not possible to contact the Commissioner or a Deputy Commissioner an authorisation may be given by a police officer above the rank of superintendent: s 8(2). The officer giving an authorisation under s 6 must also be satisfied “that the nature and extent of the powers to be conferred by the authorisation are appropriate to the threatened or suspected terrorist act”: s 8(3). An authorisation may only be given with the concurrence of the Police Minister, unless the Minister is not contactable at the time it is given: s 9.

7. [49]

   An authorisation under s 6 of the TPP Act unlocks the powers in Pt 2, Div 3. Those powers relate to such matters as requiring the disclosure by a person of their identity (s 16), powers to search persons, vehicles and premises without a warrant (ss 17, 18, 19) and powers to seize and detain things in connection with a search under Div 3 (s 20). Such powers may be exercised for the purposes for which an authorisation is given: s 15. Having regard to ss 6 and 7, the overarching purpose of an authorisation given under s 6 is to assist in apprehending the persons responsible for committing the relevant terrorist act. More specific aspects of that purpose may include to find a particular person named or described in the authorisation or to find a particular vehicle or kind of vehicle.

8. [50]

   Section 13 is a privative clause providing that an authorisation under s 6 “may not be challenged, reviewed, quashed or called into question on any grounds whatsoever”. A section of this kind would not be effective to preclude review for jurisdictional error, in light of Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1.

9. [51]

   Part 2AAA of the TPP Act is entitled “Police use of force—ongoing terrorist acts”. Section 24A provides as follows:

10. [52]

    A declaration under 24A has never been made.

11. [53]

    The Summary Offences Act regulates the conduct of persons in, or in the vicinity of, a “public place”. Public place is defined in s 3(1):

12. [54]

    Part 4 of the Summary Offences Act establishes a regime for the regulation of public assemblies through a process of notification, consultation, and negotiation with the executive government.

13. [55]

    The regime currently in force under the Summary Offences Act substantially replicates the regime which existed under the Public Assemblies Act 1979 (NSW): Lees at [36]. Before the introduction of the Public Assemblies Act there was a somewhat different regime under the now repealed Summary Offences Act 1970 (NSW). Under that Act a permit could be sought from the executive government which, broadly speaking, had the effect of depriving police of powers to disperse people taking part in a protest.

14. [56]

    The present regime in Pt 4 of the Summary Offences Act encourages the early notification of proposed assemblies to the Commissioner by prescribed notice, which is known as a “Form 1 Notice”. Subsections 23(1)(a)-(e) set out the requirements of a Form 1 Notice, including the need for advanced notice in writing and compliance with the prescribed form. The notice must describe the date, time and place of the proposed assembly, the proposed route of any procession, as well as the number of persons expected to be participants in the proposed public assembly. A notice must be signed by a person who “indicates in the notice that he or she takes responsibility for organising and conducting the proposed public assembly”: s 23(1)(e). An important purpose of a Form 1 notice is to give early and reasonably precise notification to the police of what is planned so that the police can make their assessment of safety or other risks in the proposal, and commence a dialogue in relation to risk mitigation.

15. [57]

    If the requirements in s 23(1)(a)-(e) have been complied with, there are three scenarios in which a proposed public assembly may become an “authorised public assembly” for the purposes of Pt 4. The first is where the Commissioner notifies the organiser that the Commissioner does not oppose the holding of the assembly: s 23(1)(f).

16. [58]

    The second is where notice has been served on the Commissioner at least seven days before the proposed assembly and there is no order by the Court under s 25(1) prohibiting the holding of the assembly: s 23(f)(i).

17. [59]

    Where an application is made by the Commissioner under s 25(1), the onus lies upon the Commissioner to convince the Court that the proposed assembly should be prohibited: Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109; (2020) 283 A Crim R 186 at [17(vi)]. This Court made such a prohibition order last year in respect of a proposed procession to the Sydney Opera House forecourt: Commissioner of Police (NSW) v Naser [2025] NSWCA 224 (Naser) at [11], [14].

18. [60]

    The third scenario is where the notice was served on the Commissioner, but less than seven days before the proposed assembly, and an order is obtained from the Court under s 26 authorising the holding of the assembly: s 23(f)(ii).

19. [61]

    In practical terms, if the Form 1 notice is served on the Commissioner more than seven days in advance of the proposed assembly and the Commissioner wishes to obtain orders prohibiting the assembly, the onus falls on the Commissioner to bring proceedings in court to obtain a prohibition order. Otherwise the default position is that the assembly will be authorised. If the notice is served, but not seven days before the proposed assembly, unless the Commissioner provides notice of non-opposition, the onus falls on the organiser of the assembly to obtain a court authorisation if the organiser wishes to obtain the benefits of authorisation.

20. [62]

    As the plaintiffs in the present matter emphasised, the scheme for the consideration of authorisations and prohibitions under the Summary Offences Act and the predecessor Act, whether by way of non-objection by the Commissioner or through judicial determination (by the granting of authorisation or the refusal to make a prohibition order), allows for a balancing of the different, and often competing, interests of public policy that may be at play in relation to any given public assembly. These include, on the one hand, the important democratic rights of free speech and public assembly and, on the other, privacy, preservation of property, public health, public order and public safety: Lees at [38]; Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900; [2020] NSWCA 160 (Gibson) at [7].

21. [63]

    In Naser this Court held at [37] that when the Court is dealing with an application for a prohibition order it is obliged to consider such competing public policy considerations:

22. [64]

    The significance of freedom of assembly within the scheme for authorisation of proposed assemblies was recognised in 1979 in the second reading speech for the Bill which became the Public Assemblies Act 1979 (NSW) (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1979 at 4920-1):

23. [65]

    Importantly for the purposes of the plaintiffs’ challenge to the impugned provisions, the scheme under Pt 4 of the Summary Offences Act facilitates a process of consideration of the pros and cons of a particular proposed assembly before it occurs. The requirements of notification mean that where notice is given, the relevant assessing authority, whether it be the Commissioner or the Court, will be in a position to understand the character of the particular proposed assembly and any competing public interest considerations that might arise from the proposal. The evaluative assessment which is then required is individually focused, taking into account the proposed timing of the assembly, its proposed route of procession and estimated number of participants, and is necessarily directed to those particular, known considerations.

24. [66]

    The point is illustrated by the reasoning in Naser. The decisive consideration, leading to a prohibition order being made, was the extreme risk to public safety (including to participants in the assembly as well as to other members of the public) in light of the estimated number of participants and size of the ultimate destination of the procession and its physical restrictions in terms of access for safety vehicles and egress for participants: Naser at [62]-[77]. The Court was only able to reach the conclusion that free speech considerations were outweighed by safety concerns after a careful consideration of detailed evidence about the particular assembly and procession that was proposed to occur.

25. [67]

    The absence of an “authorisation” under Pt 4 of the Summary Offences Act (as opposed to the presence of a prohibition order) does not render a public assembly unlawful. Nor does the status of authorisation signify an unqualified immunity from legal consequences. The significance of a public assembly being an “authorised public assembly” is the conferral of a more qualified immunity under s 24 from criminal liability in respect of public order provisions of the kind that are apt to apply to the conduct of an assembly. Section 24 provides as follows:

26. [68]

    Such immunity is of particular significance when it comes to such matters as obstructing other pedestrians and traffic. A number of offence provisions are potentially engaged by the acts done by people for the purpose of participating in public assemblies, particularly where a procession of a crowd is involved. Section 6 of the Summary Offences Act is one such public order offence. It provides as follows:

27. [69]

    Another example is reg 236 of the Road Rules 2014 (NSW), which relevantly provides:

28. [70]

    It was common ground between the parties to the present matter that, where a public assembly is authorised within the meaning of the Act and conducted substantially in accordance with the particulars furnished to the Commissioner, the immunity conferred by s 24 of the Summary Offences Act means that a participant in the assembly who obstructs another person or vehicle on a public road or in a public place will not commit an offence, whereas in the absence of authorisation an offence would be committed. This is a matter of considerable practical significance. It was an agreed fact in the present case that “[d]emonstrations, protests, processions and organised assemblies have the potential to obstruct persons in the vicinity, including by virtue of the number of participants in the demonstration or protest occupying the public place”.

29. [71]

    The presence or absence of authorisation for an assembly under the Summary Offences Act also has significance for the operation of LEPRA, which we address in the next section of our reasons.

30. [72]

    The immunity conferred by s 24 is not complete. There remains scope for the operation of laws dealing with miscreant behaviour that can potentially occur in connection with a public assembly, including violence, damage to property and serious public disorder. In Commissioner of Police v Rintoul [2003] NSWSC 662 (Rintoul), Simpson J, made the following observations about the limits of the immunity conferred by s 24:

31. [73]

    Section 24 of the Summary Offences Act has been held not to provide a participant in an assembly with immunity from prosecution for offensive conduct, although the plaintiffs submitted that there remains an open question about the extent to which s 24 may provide immunity in some circumstances for some conduct that would be capable of constituting offensive conduct: see Commissioner of Police v Allen (1984) 14 A Crim R 244 at 247 (Hunt J); see also Gibson at [13]; Tey v New South Wales (2023) 375 FLR 437; [2023] NSWSC 266 at [78]-[79]; Stratton v State of New South Wales; Pandolfi v Minister for Health and Medical Research (2023) 112 NSWLR 1; [2023] NSWSC 396 at [69].

32. [74]

    The long title of LEPRA describes it as: “[a]n 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”.

33. [75]

    Part 14 is headed “Powers to give directions” and contains provisions authorising police to give directions to people in public places subject to certain limitations. A “public place” is defined in s 3 as follows:

34. [76]

    The provisions in Pt 14 conferring powers on police officers to give directions were introduced in 1998 by the Crimes Legislation (Police and Public Safety) Act 1998 (NSW), as part of the now repealed Pt 5 of the Summary Offences Act. The provisions were recently discussed in some detail by Mitchelmore JA in Lees. Her Honour observed at [42] that:

35. [77]

    Under s 197(1) of LEPRA, a police officer may relevantly “give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place”:

36. [78]

    A direction under s 197(1) must be reasonable in the circumstances for the purpose of, relevantly, reducing or eliminating the obstruction, harassment, intimidation or fear: s 197(2). By s 198A, a police officer may issue a direction under Pt 14 to persons comprising a group.

37. [79]

    Under s 199 of LEPRA, a failure to comply, without reasonable excuse, with a direction given in accordance with Pt 14 is an offence, provided it is established that the person persisted, after the direction concerned was given, to engage in that or any other relevant conduct.

38. [80]

    Section 200 operates to confine the scope of the powers otherwise conferred by Pt 14 to give a direction. Pt 14 does not authorise a police officer to give a direction in relation to an industrial dispute: s 200(1). Section 200(2) provides that the police powers to give directions under Pt 14 do not apply in relation to an apparently genuine demonstration or protest, a procession or an organised assembly. However, that exclusion is itself subject to exceptions. Focusing only on the provisions that existed prior to the Amending Act, the exceptions mean that, despite s 200(2):

    1. (1)

       if a police officer believes on reasonable grounds that a direction is necessary to deal with a “serious risk to the safety of the person to whom the direction is given or to any other person”, then a direction under Pt 14 may be given even in relation to an apparently genuine demonstration or protest, a procession or an organised assembly: s 200(3);

    2. (2)

       a direction may be given in relation to a demonstration, protest, procession or assembly that is obstructing traffic, if it is not an assembly that is authorised under Pt 4 of the Summary Offences Act and being held substantially in accordance with such authorisation, the officer in charge at the scene has authorised the giving of directions and the direction is limited to the persons who are obstructing traffic: s 200(4); and

    3. (3)

       a direction may be given under Pt 14A in relation to a demonstration, protest, procession or assembly in or near places of public worship where certain circumstances exist (including that it is not an authorised assembly under Pt 4 of the Summary Offences Act) and blocking, impeding, hindering, harassment, intimidation or threats of a certain kind is occurring: s 200AA.

39. [81]

    Thus, in the pre-amendment regime, where an apparently genuine public assembly, protest, procession or organised assembly was an “authorised” public assembly under Pt 4 of the Summary Offences Act, the powers of police to issue directions under Pt 14 LEPRA were effectively limited to circumstances of “serious risk of safety” under s 200(2). The ability to issue directions in those circumstances, even in the case of genuine protest activity, was introduced in 2016 in response to protest activities at mines and other work sites that were seen as being particularly dangerous for protesters, workers and emergency workers: see second reading speech for the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 (NSW) (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 8 March 2016 at 7029).

40. [82]

    One of the significant effects of authorisation under Pt 4 of the Summary Offences Act was to disapply the power to issue directions to persons obstructing traffic. That is a matter of considerable practical significance for the conduct of public assemblies, given the frequency with which crowds gather and march on roads.

The impugned provisions

1. [83]

   The Amending Act made amendments to a number of Acts, including in relation to hate speech and the regulation of firearms. Those amendments are not the subject of challenge and it is unnecessary to say anything more about them. The impugned provisions involve the insertion of the new PARD scheme in the TPP Act and amendments to the Summary Offences Act and LEPRA which alter the operation of those Acts when a PARD is in place.

2. [84]

   Section 23B of the TPP Act, inserted as part of a new Pt 2 Div 3A by the Amending Act, applies if an authorisation is given under s 6 or a declaration is made under Pt 2AAA: s 23B(1). The existence of an authorisation or declaration of this kind enlivens the power to make a PARD, but once that power is enlivened there is no need for the power to be exercised only for the narrow purposes to be served by the underlying authorisation or declaration. The PARD scheme has a broader and more flexible operation. As Mr Hume SC, who appeared with Ms Graham, Mr Hawila and Mr Bell for the plaintiffs, correctly submitted, the authorisation or declaration is a condition precedent but that is the end of the significance of the authorisation or declaration.

3. [85]

   Section 23B(2) provides:

4. [86]

   There is no scope under this provision for limiting a PARD to particular assemblies or types of assemblies. The only variable is the area to which the declaration applies. Within the area, the effect of a PARD is that the authorisation of the holding of all public assemblies is restricted.

5. [87]

   A PARD may only be made within 14 days after the making of an authorisation under s 6 or a declaration under Pt 2AAA: s 23B(3)(b). The critical precondition to the making of a PARD is the formation of a state of satisfaction of the kind described in s 23B(3)(b). A PARD may be made

6. [88]

   As noted above, a PARD may be made, extended or varied only with the concurrence of the Police Minister: s 23F(1). There is an exception if the Police Minister is not able to be contacted when the declaration is made, extended or varied (s 23F(2)), although in such circumstances the Police Minister must be notified and the PARD, or the extension or variation of the PARD (as the case may be) will cease to have effect if not confirmed by the Minister within 48 hours.

7. [89]

   A PARD may be extended by a Commissioner or Deputy Commissioner for a period of no more than 14 days, if the Commissioner or Deputy Commissioner is satisfied that the PARD continues to be necessary on the grounds referred to in s 23B(3)(b): s 23C(1). There may be multiple extensions, but a PARD cannot be in force for an aggregate period of more than 90 days: s 23C(2).

8. [90]

   A PARD may also be varied under s 23D, if the Commissioner or Deputy Commissioner is satisfied the grounds referred to in s 23B(3)(b) apply to the area as varied. A PARD may be revoked under s 23G.

9. [91]

   A PARD commences when the declaration under s 23B(2) is made and ends 14 days later, unless the declaration is extended under s 23C, ceases to have effect under s 23F(3)(b), or is revoked under s 23G: s 23B(4).

10. [92]

    Schedule 5 of the Amending Act inserted ss 27A and 27B into Pt 4 of the Summary Offences Act. A public assembly cannot be an authorised public assembly under s 23, or be authorised by a Court order under s 26, if the assembly will be held or partly held in an area to which a PARD applies during the time the PARD is in force: s 27A(1). There is an exception for public assemblies that form part of industrial action, an industrial dispute or an industrial campaign: s 27A(2). We agree with the submission of the plaintiffs that the effect of s 27A(1) is to deny the prospect of authorisation for an assembly if any part of the assembly, which would include any procession, covers an area to which a PARD applies.

11. [93]

    Section 27B applies if, before a PARD was made or extended, a public assembly in the area the subject of the PARD was authorised to be held on a date on which the PARD is in force: s 27B(1). In such circumstances the authorisation of the assembly is taken to be revoked and the Commissioner or Deputy Commissioner must take reasonable steps to notify the organiser of the assembly that it has ceased to be authorised: s 27B(2) and (3).

12. [94]

    Schedule 4 of the Amending Act inserted s 200(5) into LEPRA:

13. [95]

    Section 200(5) disapplies, in a PARD area, the limitation on police powers that is otherwise provided by s 200(2) in a PARD area. As a result a police officer is empowered to give directions in respect of apparently genuine demonstrations, protests, processions or public assemblies held within a PARD area. This includes giving a move on direction when the officer has a reasonably held belief that a person is either obstructing another person or persons, obstructing traffic, or harassing or intimidating another person or persons, or is causing or likely to cause fear to another person or persons (if the relevant conduct would be such as to cause fear to a person of reasonable firmness).

The established test of validity

1. [96]

   The implied freedom in the Constitution relevantly limits the power of Commonwealth and State parliaments in passing laws which impose a burden on the freedom of communication about government and political matters: Lange. The implied freedom is “essential to the maintenance of the system of representative and responsible government for which the Constitution provides” in ss 7, 24, 64 and 128: Brown at [88]. The implied freedom gives effect to the political sovereignty reposed in the people by the system of representative and responsible government established by the Constitution: Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58 (Unions (No 1)) at [17]-[26]. The limitation operates to limit the powers of a State parliament, including in relation to communication about principally State matters: Unions (No 1) at [17]-[26].

2. [97]

   The implied freedom is not absolute and it does not entail freedom from all regulation or restraint. The freedom exists only as an incident of the system of representative and responsible government provided for by the Constitution and it limits legislative and executive power “only to the extent necessary for the effective operation of that system”: Brown at [313] per Gordon J. Validity falls to be determined by reference to the effect of the law on political communication as a whole: Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 33 at [20].

3. [98]

   The inquiry for determining whether an impugned law infringes the implied freedom is “orthodox and familiar” (Ravbar v Commonwealth (2025) 99 ALJR 1000; [2025] HCA 25 (Ravbar) at [27]). It requires the Court to address three questions:

   1. (1)

      Does the impugned law effectively burden the freedom in its terms, operation or effect? If not, the law is valid and no further question arises.

   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? If the answer is no, the law is invalid.

   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? If the answer is no, the law is invalid.

4. [99]

   As to the endorsement of these three questions as the binding approach, see McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 at [2] (McCloy) (French CJ, Kiefel, Bell and Keane JJ); Brown at [102]-[104] (Kiefel CJ, Bell and Keane JJ), [162]-[163] (Gageler J), [237] (Nettle J), [316]-[325] and [481] (Gordon J); Clubb at [5] (Kiefel CJ, Bell and Keane JJ); LibertyWorks Inc v The Commonwealth (2021) 274 CLR 1; [2021] HCA 18 at [134] (Gordon J) (LibertyWorks).

5. [100]

   In recent years the appropriate approach to answering the third question has been a matter of considerable debate. The nature and resolution of that debate was summarised by this Court in Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188 in the following terms, at [138]-[140]:

The burden imposed on the freedom of political communication by the impugned provisions

1. [101]

   As the State properly conceded, the impugned provisions impose a burden on the freedom of political communication. The relevant burden is the incremental effect of the impugned provisions on the freedom to engage in a form of political communication which may already be validly restricted: see Farm Transparency at [37]; Brown at [109], [181], [188], [259], [262], [357], [420], [556]-[558]. The extent of the burden is therefore to be measured by reference to the restraints which the law already imposes, and not by reference to a notional state of absolute freedom.

2. [102]

   Both parties properly approached this question by treating the scheme for authorisation of public assemblies (subject to various prohibitions and limitations) as it existed prior to the Amending Act, as well as the un-amended operation of Pt 14 of the LEPRA in relation to public assemblies (both authorised and not authorised) as the relevant baseline against which to measure the burden on freedom of political communication created by the Amending Act.

3. [103]

   One critical feature of this baseline scheme was that it allowed a mechanism for organisers of public assemblies to seek a measure of legal protection for the conduct of such assemblies. We have explained above the nature of the legal protection conferred by authorisation under Pt 4 of the Summary Offences Act. It bears repeating that the immunity afforded to authorised assemblies was far from absolute. A balance was struck in the pre-existing law between, on the one hand, authorised conduct that was made immune from laws that might otherwise apply to disruptive conduct in public places and, on the other, conduct that remained unlawful in the interests of preserving the public interest in such matters as physical safety, protection from intimidation and offensive conduct, protection of property and preserving freedom of movement.

4. [104]

   The plaintiffs point in this regard to various offence provisions which continue to apply and constrain the conduct of public assemblies, even when authorised under Pt 4. These include the following offence provisions:

   1. (1)

      under the Summary Offences Act, offensive conduct (s 4), offensive language (s 4A) and violent disorder (s 11A);

   2. (2)

      under the Crimes Act 1900 (NSW), riot (s 93B), affray (s 93C), incitement of violence on the grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status (s 93Z), publicly inciting hatred on ground of race (s 93ZAA), display of Nazi symbols (s 93ZA);

   3. (3)

      under the Anti-Discrimination Act 1977 (NSW), inciting hatred towards, or serious contempt for, or severe ridicule of, a person or group of persons on the ground of race (s 20C); and

   4. (4)

      under the Criminal Code (Cth), advocating force or violence against a targeted group that is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion (s 80.2A) or advocating the use of force or violence against a person on such grounds (s 80.2B), advocating terrorism (s 80.2C), advocating genocide (s 80.2D) and public display of prohibited Nazi symbols or giving the Nazi salute.

5. [105]

   Legislation must be assessed according to its legal operation and practical effect: Lange at 567. The impugned provisions operate by denying public assemblies in declared areas the possibility of authorisation under Pt 4 of the Summary Offences Act, and thereby denying the possibility of qualified statutory immunity under s 24 of the Summary Offences Act. The result is to make participating in an affected public assembly a more legally precarious activity. Participants are put into a state of materially greater legal jeopardy than would not exist if authorisation were obtained under Pt 4 of the Summary Offences Act.

6. [106]

   As the State correctly points out, authorisation is never guaranteed under Pt 4 and it is always contingent on the provision of a compliant and timely notice of a proposed assembly and the lack of any prohibition order from the Court. Nevertheless, the practical effect of foreclosing that option altogether is to make it less likely that people will organise and participate in public assemblies that are within, or even partly within, an area covered by a PARD. That is, of course, why the legislature chose this technique to bring about the desired outcome of discouraging people from engaging in public assemblies in declared areas.

7. [107]

   There is an additional aspect to the amendments to the LEPRA which adds to the burden. This involves the operation of the powers conferred on police officers to give directions under Pt 14 of LEPRA, as modified by s 200 of that Act. We have described above the position prior to the Amending Act. In the case of an apparently genuine demonstration or protest, a procession, or an organised assembly, there was generally no power to give directions, except in cases of serious risk to the safety of particular persons or where an unauthorised assembly was obstructing traffic. As a result, the usual power conferred on a police officer under s 197 to give a direction to a person if that person was obstructing another person, or engaging in conduct that constituted harassment or intimidation of other persons, or causing fear to another person or persons, did not apply in the context of a public assembly that met the description of being an apparently genuine demonstration or protest, a procession, or an organised assembly. However, s 200(5) of the LEPRA, which was introduced by the Amending Act, has the effect that the powers to make directions conferred by s 197 are available to assemblies occurring within a PARD declared area. This reinforces the legal precariousness of participating in such an assembly, as compared with the situation that applied before the Amending Act.

8. [108]

   To take the most conspicuous example, a police officer under s 197 of LEPRA could issue a direction to a participant or group of participants in a public assembly within a PARD area if they were obstructing another person or persons. Failure to comply with such a direction, without reasonable excuse, is an offence under s 199 of the Act. It is to be expected that many public assemblies will, of their nature, cause the obstruction of non-participants in the vicinity. An obstruction may occur by blocking or making it difficult for a person to pass through a particular area: Lees at [56]. The risk of being subject to an order under s 197 of LEPRA, and thereby becoming potentially guilty of an offence under s 199, presents a substantial impediment to holding any form of public assembly within a PARD area.

9. [109]

   Mr Lim SC, who appeared with Ms Ryan and Mr Khadra for the State, submitted that the burden imposed on freedom of political communication by the impugned provisions is confined. The State drew attention to the temporal and geographical dimensions of any burden. As to the former, a PARD will initially last for only 14 days. Although it can be extended, the maximum duration is 90 days. As a result, the State submits, the period of time within which assemblies are restricted is necessarily confined and will come to a predictable end.

10. [110]

    The State relatedly emphasised that the conditions for the making of a PARD are exceptional. The circumstances apt to enliven the power to give an authorisation under s 6 of the TPP Act are narrow and cannot be expected to arise routinely. So too the conditions for making a declaration under Pt 2AAA of the TPP Act, as illustrated by the fact that no such declaration has been made to date. Moreover, the State submits, even where such an authorisation or declaration has been made, a PARD can only be made where the circumstances in s 23B of the TPP Act exist and the Commissioner or Deputy Commissioner (with the concurrence of the Police Minister) decides to make a PARD.

11. [111]

    The State also points to the fact that even where a PARD is in place, there is no prohibition per se on public assemblies, even if assemblies within a PARD declared area will be subject to a more exacting set of laws and police powers. As the State correctly observes, various public assemblies were in fact held in and around Sydney after the PARD was made, which illustrates that there remained scope for lawful forms of political communication through public assemblies notwithstanding the Amending Act.

12. [112]

    In terms of geographical reach, the State submits that a PARD will only be made in respect of an area to which the Commissioner or Deputy Commissioner’s state of satisfaction under s 23B(3)(b) applies, which tends to confine the scope of the likely application of any PARD.

13. [113]

    The State’s submissions as to geographical reach are undercut by the breadth of the PARD made on 24 December 2025. While it was later varied to reduce the area of application, the PARD as first made applied to large swathes of the suburbs surrounding Sydney in each direction, as well as all of the CBD. The potential for a far-reaching PARD of this kind is reinforced by the point we develop in the next section of our reasons about the broad meaning of “community safety” in s 23B(3)(b) of the TPP Act. The PARD scheme is not concerned only with managing the risks to safety that might arise in the immediate vicinity of a public assembly. It is also concerned with broader impacts in the community which may be well removed from the site of any particular assembly. This in turn raises the prospect of geographically expansive PARDs like the one made on 24 December 2025, reflecting an assessment that the safety of the community as a whole may be endangered by a public assembly of any kind anywhere in or around Sydney. Any PARD encompassing the Sydney CBD is also bound to exclude the authorisation of public assemblies at most or all of the locations perceived as significant for the holding of such assemblies. As we have explained above, those locations are often chosen for important logistical and symbolic reasons, and restricting assemblies at such locations has a particular burden on effective political communication.

14. [114]

    As for the limited duration of any PARD, it may be accepted that a short-term restriction imposes less of a burden on the freedom of political communication than a permanent restriction or a restriction of longer duration. But it does not follow that a short-term period of discouragement of public assemblies imposes only a slight or insignificant burden on the freedom of political communication. The comprehensive nature of the burden is significant in this respect – any public assembly of any size or kind for any purpose is caught by a PARD, when it applies. It is also important to recall the significance of timing to effective political communication. Even a short-lived PARD may make it practically impossible to organise a politically effective public protest in response to an event that occurs while the PARD is in force. To return to the example of “Invasion Day” protests on 26 January, a restriction on the conduct of assemblies that applies on that day is one that imposes a heavy burden on people who wish to engage in political communication on that significant and symbolic date, an opportunity which will only arise once per year.

15. [115]

    A similar answer applies to the State’s submission drawing attention to the fact that PARDs operate to restrict public assemblies, but without prohibiting them. While this is legally accurate, it does not follow that the impugned provisions have no disinhibiting effect on public assemblies. The very purpose of the impugned provisions is to discourage public assemblies within PARD declared areas by materially increasing the legal risk for participants in such assemblies. That conclusion is not avoided by pointing out that the change does not amount to a total prohibition. Again, it may be accepted that a prohibition would impose a more onerous burden on freedom of political communication, but it does not follow that the burden imposed by the chosen restrictions is slight or insubstantial.

16. [116]

    The extent of the burden imposed on the freedom of political communication becomes relevant to later steps in the assessment of constitutional validity: Brown at [90]. The measure of justification in any given case is calibrated to the nature and intensity of the burden imposed on the freedom of political communication: Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35 (Tajjour) at [151]; Brown at [164]. A law with respect to the prohibition or restriction of political communications will be more difficult to justify than a law with respect to some other subject matter, where the effect on communications is incidental and unrelated to their nature as political communications: Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 169; [1992] HCA 45; Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [95]-[96]; Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton) at [30]. The impugned provisions fall into the former category. As such, close scrutiny of the justification for the impugned provisions is demanded: Brown at [165], [203].

17. [117]

    For the above reasons, the first of the three questions identified at [98] above must be answered in the affirmative. This leads to the second question which is concerned with the legitimacy of the purpose of the impugned provisions.

The purpose of the impugned provisions and the constitutional legitimacy of that purpose

1. [118]

   In determining the purpose of an impugned law for the purposes of testing constitutional validity, ordinary principles of statutory construction apply: Ruddick v The Commonwealth (2022) 275 CLR 333; [2022] HCA 9 at [133]. The purpose of a statute, like its meaning, is to be ascertained objectively from the whole text and context: Brown at [208]-[209]; Ravbar at [43], [120], [459].

2. [119]

   In Ravbar at [41], Gageler CJ explained that the “purpose” of a law is the “end” or “object” of the law. His Honour proceeded to say (references added):

3. [120]

   Purpose in this sense is not to be confused with the motive that any member of Parliament might have for supporting the legislation in question, the means used to achieve the purpose or the foreseeable or actual effect of the legislation enacted for that purpose: Ravbar at [173].

4. [121]

   A matter of some significance in determining the purpose of an impugned law is determining the appropriate level of abstraction, and drawing the necessary distinction between the purpose and the means chosen to achieve that purpose: Alexander v Minister for Home Affairs (2022) 276 CLR 336; [2022] HCA 19 (Alexander v Home Affairs) at [103]-[105]; Tajjour at [163]. The focus should be upon identifying the purpose at the right level of generality to correspond to the mischief to which the provision is directed: Ravbar at [173], [459]; Unions NSW v State of New South Wales (2019) 264 CLR 595; [2019] HCA 1 (Unions (No 2)) at [171]; LibertyWorks at [183], [204].

5. [122]

   In the second reading speech for the bill which became the Amending Act, the Minister for Police and Counter-terrorism explained the background to the Amending Act and the perceived need for urgent action. In relation to the new restrictions being introduced in relation to public assemblies the Minister said the following:

6. [123]

   The Minister proceeded to describe the existing powers conferred under the TPP Act to authorise the use of special preventative and investigative powers (ss 5 and 6) and to make a declaration authorising the use of force in relation to a declared terrorist act (Pt 2AA). After explaining the existing regime under Pt 4 of the Summary Offences Act for the authorisation of public assemblies, and the consequences of such authorisation (including for the operation of s 200 of LEPRA), the Minister said:

7. [124]

   The following points emerge from this explanation of the bill and its background by the Minister. The government perceived in the wake of the Bondi Beach attack that social cohesion was under threat, and that as a general proposition community tensions may run high in the immediate aftermath of a terrorist attack. Linked to that assessment was a view that public assemblies in such a context were apt to, or at least had the potential to, undermine social cohesion and place the community at risk. This was the mischief to which the amendments concerning public assemblies were directed.

8. [125]

   The State in its submissions to the Court also relied on a “Statement of Public Interest” which was tabled in connection with the first reading of the bill that became the Amending Act. In its explanation of the proposed new scheme authorising restrictions to be imposed on public assemblies the Statement followed the same logic as the second reading speech in describing the perceived mischief and response:

9. [126]

   The legislation was intended to remedy the identified mischief by conferring the power to impose PARDs that would operate to discourage all public assemblies from being held in any area to which a PARD applied. The second reading speech and the Statement of Public Interest did not put the proposition quite as squarely as this, although in the debate following the second reading speech the Attorney General did:

10. [127]

    This description highlights the link that was implicit in the second reading speech between the mischief described in that speech and the measures introduced in the Amending Act. Where a PARD is in place a public assembly cannot be authorised under Pt 4 of the Summary Offences Act. It follows that the qualified statutory immunity available under the Form 1 system cannot be obtained and participating in a public assembly becomes a significantly more precarious activity from a legal perspective. Participation in a public assembly is also discouraged by enlivening the powers of police under s 197 of LEPRA to issue directions to respond to such things as obstruction of other persons. The Attorney General therefore captured the essence of the scheme as being intended to discourage people from holding any kind of public assembly within a declared area for the duration of the PARD.

11. [128]

    The second reading speech alluded in a number of different ways to concepts of “public safety”. The Minister described risks to public safety in a conventional sense of danger to the physical wellbeing of members of the community. In this context a link was drawn between the assembly of large groups of people and a risk that some in the community, including those participating in the assembly and people in the vicinity, may become the targets of attack. A related concern was that assemblies may cause obstructions which impede the ability of emergency services to “respond to any further or developing risk effectively”. But in describing the purpose of the bill the Minister also used the concept of public safety, and the associated concept of risks to the community, in a broader sense as encompassing risks to the psychological welfare of members of the community and the cohesion of the community generally. In that connection the Minister described the bill as a response to a concern that public assemblies in the aftermath of a terrorist attack may be “divisive” and may result in “further fear and social disharmony”. The Minister also referred to a concern that a public assembly held to express support for, or denounce, a particular community or group, or which relates to a cause that is highly significant for one or both of those community groups could “further inflame tensions”.

12. [129]

    Of course, it is important not to read the second reading speech as if it is itself a statute, or otherwise place undue emphasis on the particular language of the second reading speech. The purpose of a statute resides in its text and structure: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 592; [2011] HCA 10 at [44]. But that is not to deny the importance of extrinsic materials in identifying the purpose of a law. They are a recognised aspect of the context in which statutory text must be interpreted: Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at 519; [2012] HCA 55 at [39]. In Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25], French CJ and Hayne J held that the determination of the purpose of a statute or of particular provisions of a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. In Ravbar at [45] Gageler CJ held that the purpose of a law must be assessed by reference to context, which includes the “entirety of the parliamentary proceedings which resulted in the enactment of the law”. It is undoubtedly legitimate to have regard to secondary materials, including a second reading speech, to identify the mischief to which legislation was directed: Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [13], [172]; see also Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; [2006] HCA 11 at [22].

13. [130]

    The understanding of the purpose of the restriction of public assemblies that we have set out above is confirmed by analysis of the powers conferred in relation to PARDs by the Amending Act. Section 23B of the TPP Act contemplates that a Commissioner or Deputy Commissioner may be satisfied that the mere “holding of public assemblies”, of any kind, in a particular area within the coming 14 days would be likely to cause a risk to “community safety”. That is a prospective assessment that is necessarily to be made in the abstract, without any capacity for the Commissioner or Deputy Commissioner to anticipate precisely what kinds of public assemblies are likely to be held or the particular risks to physical safety that they entail. It is, necessarily, an apprehension of risk arising from the mere fact of public assemblies being held, and not from any foreseen characteristic of the way in which any particular assembly is expected to be conducted. That is the trigger for the making of a PARD.

14. [131]

    The conferral of a power in these terms is only explicable once it is appreciated that the legislature apprehended that a risk to “community safety” can arise simply from public assemblies being held in the aftermath of a terrorist attack, because public assemblies tend to lead to fear, social disharmony, division and inflamed tensions, and these outcomes are considered to be incompatible with community safety. Unless s 23B is read in this way, the whole PARD scheme would be ineffective to address the mischief described in the second reading speech. Both parties in the present matter embraced the notion that where s 23B of the TPP Act refers to “community safety” this must include the psychological safety of individuals, and, by extension, the cohesion of the community more broadly. They were correct to do so as a matter of construction. Where a court has identified the target of Parliamentary legislation the proper function of the Court is to see that the target is hit, not merely to record that it has been missed: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424D, quoting Lord Diplock writing extrajudicially in “The Courts as Legislators” in Brian W Harvey, The Lawyer and Justice (Sweet & Maxwell, 1978) at 274.

15. [132]

    This conclusion has significance for the State’s submission that the power to make a PARD is “tightly confined”. The State argues that the power is so tightly confined that any burden on the implied freedom is slight and the power to make a PARD can be shown to be “justified across the range of potential outcomes of the exercise of that discretion”: Palmer v State of Western Australia (2021) 272 CLR 505; [2021] HCA 5 at [123] (Palmer). The submission has a number of dimensions, including that s 23B of the TPP Act will only be enlivened in “extremely rare” circumstances because of the limited scope of the power to make authorisations under s 6 of the TPP Act and declarations under Pt 2AA of the TPP Act. The State also points to the nature of the matters about which the Commissioner or Deputy Commissioner must be satisfied under s 23B(3)(b). On the latter point, once it is appreciated that “community safety” is used in a very broad sense in s 23B(3)(b), there is considerably less force in the submission that a PARD could only be made in a narrowly confined set of circumstances. As it is open to the Commissioner or Deputy Commissioner to consider the risk to the psychological safety of others in the community posed by the holding of public assemblies, there is in fact much latitude in the formation of that evaluative judgment.

16. [133]

    The State submitted that the purpose of the impugned provisions was to protect the community and enhance social cohesion, specifically by “respond[ing] to social disharmony wrought by mass demonstrations perceived to be directed at particular community groups in the aftermath of a terrorist act when social cohesion is particularly fragile”. The chosen means to achieve such social cohesion, according to the State, was “placing sensible limits on the authorisation of public assemblies”. Where a PARD is in force, however, the legislation does not operate to “limit” authorisation of public assemblies but to foreclose any authorisation.

17. [134]

    The State’s submission that the purpose of the law was to protect the community from perceived risks to social cohesion, and the threat of division captures part of the purpose of the Act, but not all of it. As the State appears to have accepted, it is not sufficient to stop there without also recognising the object of preserving social cohesion by addressing the risk posed to social cohesion by the holding of public assemblies. To characterise the purpose of the Amending Act as being to support social cohesion would be too abstract. It is only one step short of describing the law as being for the peace, order and good government of the State: see Alexander v Home Affairs at [103]. As recognised in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 332; [2005] HCA 44 at [178], quoted in the passage we have set out above from Ravbar, the purpose of a law – being what it is designed to achieve – is the inverse of the mischief at which the law is aimed. Once it is appreciated that the mischief was the harm to social cohesion being caused by public assemblies, the impugned provisions can be seen to have had the purpose of discouraging public assemblies within a PARD area, so as to address that mischief.

18. [135]

    It would likewise be incomplete to say that the purpose of the Amending Act is to restrict or discourage public assemblies. That would only beg the question – why is it in the public interest to restrict or discourage public assemblies? Viewed in those terms there would be nothing to distinguish the purpose of the Amending Act from a law enacted during the COVID-19 pandemic to restrict public gatherings for public health reasons. The reason for identifying the purpose of a law in this context is to provide a meaningful basis for testing constitutional legitimacy: Alexander v Home Affairs at [104]. Abstraction to that degree would not assist.

19. [136]

    The purpose of the impugned provisions is to restrict public assemblies in order to protect social cohesion by avoiding the perceived divisiveness and disharmony that arises from public assemblies being held in the period following a terrorist attack. We do not accept the State’s submission that the purpose was only to respond to the social disharmony wrought by mass demonstrations that were perceived to be directed at particular community groups. Certainly, addressing the concern that particular groups experienced a sense of threat, fear and unease as a result of assemblies seen to be targeting them was an aspect of the legislative purpose. The requirement in s 23B(3)(b)(ii) that the Commissioner or Deputy Commissioner must be satisfied that the holding of public assemblies would be likely to cause a “risk to community safety” also reinforces the concern with the impact that public assemblies would have on others in the community. The purpose should be understood in broader terms as being to guard against the risk to social cohesion associated with public assemblies generally. That is more consistent with the scope of the power conferred by s 23B of the TPP Act. The power to make a PARD does not differentiate between particular types of assemblies (including assemblies targeting particular groups) and it does not enable the person making a PARD to draw such distinctions. The only type of PARD which is authorised is one that restricts all public assemblies within the declared area.

20. [137]

    We also reject the State’s submission that discouraging public assemblies was no more than a consequence, or a foreseen effect, of the Amending Act rather than an aspect of the purpose of the law. Discouraging public assemblies was the end sought to be achieved by the introduction of the PARD scheme.

21. [138]

    The purpose of a law is legitimate in the relevant sense for the present inquiry if it is compatible with the preservation of the integrity of the system of representative and responsible government. In Farmer at [55] Gageler CJ, Gordon and Beech-Jones JJ observed that legislative power cannot be exercised “for the purpose of curbing disagreement and debate within Australia”.

22. [139]

    In Brown, Gageler J (as the Chief Justice then was) observed:

23. [140]

    Gageler CJ quoted those observations in Ravbar where the Chief Justice observed that “[s]uppressing political communication by the whole or some part of an employee organisation ‘may be a means to a legitimate end, but it cannot be a legitimate end in itself’”.

24. [141]

    Those observations were consistent with his Honour’s earlier observation in Tajjour at [148] that the end of “quelling a political controversy or of handicapping political opposition” would not be compatible with maintenance of the system of representative and responsible government established by the Constitution.

25. [142]

    These various statements in the authorities leave open the possibility that it may be legitimate to seek to constrain public debate of certain kinds as a means to a legitimate end, though not as a legitimate end in itself. Relatedly, the State submitted that the purpose of preserving social cohesion is compatible with the system of representative and responsible government established by the Constitution because it is a “precondition to the full participation in civic life by all the various communities that constitute the population for whom political communication should be equally secured”. The State submits that this notion of a civic environment conducive to participation by all is supported by statements in the case law concerning restrictions on political advertising. In that context it has been recognised that it is legitimate to seek to “secure the ability of all to be heard in the ‘public square’, rather than abdicate their responsibility to a marketplace in which the loudest voices dominate”: Unions (No 2) at [82].

26. [143]

    This attempted justification of the law involves a particular conception of civic life and “social cohesion” that is at odds with the system of representative and responsible government for which the Constitution provides. The impugned provisions are not directed to the prevention of breaches of the peace or social disorder as conventionally understood. The purpose of the PARD scheme is not confined to protecting people in the vicinity of an assembly, or even further removed, from intimidation or the threat of violence. Instead, underpinning the State’s argument, and the logic of the legislature in passing the impugned provisions, is a notion that the community can and should be protected from political expression by some members of the community because it might be upsetting, inflammatory and divisive for other members of the community. This includes protecting people, including those physically well removed from a public assembly, from the sense of distress or offence that they may feel about an assembly occurring, and about the potential social repercussions of the assembly. “Social cohesion” is thus being used in a quite particular sense to signify a degree of calm and protection from dissent and disharmony associated with political activity of others. Where we refer in these reasons to the constitutionally illegitimate purpose of the impugned provisions, we are addressing this particular usage of “social cohesion”. Our analysis in that regard should not be understood as signifying that, as a general proposition, maintaining social cohesion is not a legitimate legislative objective.

27. [144]

    In Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92; [2013] HCA 4 (Monis), Hayne J at [143] made the following observations about the need for precision in dealing with a similar concept, namely the preservation of an “ordered society”:

28. [145]

    The State gains no support from the proposition, addressed in Unions (No 2), that it may be necessary in some circumstances for the legislature to take measures to ensure that all can be heard in the public square. The State’s concern in enacting the Amending Act was not to level the playing field to ensure that no one voice is overwhelmed by another: (see Unions (No 2) at [82]). The State rather intended to quieten all voices on the playing field for a period of time that could extend for up to 90 days. This involves a distorted notion of a public square in which dissenting and objectionable voices are suppressed, in the name of creating a more civil and tranquil environment. That is not the type of public square that the implied freedom operates to maintain.

29. [146]

    The system of representative and responsible government entrenched by the Constitution, involving a free and true choice by the electors, entails acceptance of the potential for disharmony, incivility and disruption that is part and parcel of democratic intercourse. That is reflected in the longstanding recognition that the protection of dissent is at the heart of the implied freedom. It is also reflected in statements in the relevant High Court decisions about the various kinds of uncivil and objectionable behaviour that are protected by the implied freedom.

30. [147]

    In Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 (Coleman v Power) at [105], McHugh J held that insults are a “legitimate part of the political discussion protected by the Constitution”. The relevant provision of the Vagrants, Gaming and Other Offences Act 1931 (Qld) that was in issue in Coleman v Power made it a crime for a person in or near a public place to use “any threatening, abusive, or insulting words to any person”. McHugh J at [102] reasoned that in order to be constitutionally valid a law of such a kind criminalising “insulting” behaviour must be drafted or construed as operating only where an intentional breach of the peace has occurred. His Honour was satisfied that regulating political statements for the purpose of preventing breaches of the peace by those provoked by the statements is an end that is constitutionally legitimate: [102].

31. [148]

    Gummow and Hayne JJ construed the words “abusive” and “insulting” as meaning words which, “in the circumstances in which they are used are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation”: [193]. As Hayne J observed in Monis at [199], this narrow construction of the law in Coleman v Power was both necessary and sufficient to support the conclusion of validity. That is because if the law were construed as criminalising conduct that merely hurt the personal feelings of another person, the law’s object would be seen as being to ensure the civility of discourse. In Coleman v Power Gummow and Hayne JJ at [199] made clear that a law directed to ensuring civility of discourse, in its application to political content, would not be compatible with the maintenance of the constitutionally prescribed system of government. On the stricter construction, the law could be seen as having the constitutionally legitimate object of “keeping public places free from violence”: [198]. Because the provision was concerned with conduct in a public place, legitimate considerations of public order arose: see Monis at [339].

32. [149]

    Kirby J in Coleman v Power resolved the issue by adopting a similar approach. In concluding that “insulting” could not be given a broad meaning in the relevant offence provision, his Honour said the following, at [239] (references omitted):

33. [150]

    Similar conclusions can be drawn from the judgments in Monis. That case concerned s 471.12 of the Criminal Code, which prohibited the use of postal or similar services for communications which reasonable persons would regard as being “offensive”. French CJ held that the provision infringed the implied freedom of political communication. In considering how the hypothetical “reasonable person” would approach the characterisation of any particular use of the postal or similar services, French CJ at [66]-[67] made the following observations about the character of political discourse in Australia:

34. [151]

    The breadth of the operation of the provision in capturing all such communications, where they are “offensive”, rendered the provision incompatible with the implied freedom according to French CJ: [73]. Hayne J reached the same conclusion. In doing so, his Honour said the following about the nature of political communication protected by the implied freedom:

35. [152]

    In emphasising the centrality and importance of the freedom of political communication, Hayne J described it as including “political communications that are intended to and do cause very great offence”. His Honour identified the purpose of s 471.12 of the Criminal Code as being to protect the recipients of mail and others from offence. That is not, according to Hayne J, a legitimate object or end, because it is not compatible with the maintenance of the constitutionally prescribed system of government. His Honour proceeded to describe the object of the law as going no further than “maintaining the civility of discourse” (as opposed to keeping the peace). His Honour held, at [199], that ensuring civility of discourse in public is not a constitutionally legitimate object, and ensuring civility of private discourse is even further removed from a legitimate object. Hayne J referred at [214] to Coleman v Power as establishing that promoting civility of discourse is not a legitimate object or end.

36. [153]

    In dealing with an argument in Monis that seriously offensive conduct could be legitimately prohibited, Hayne J referred to McHugh J’s statement in Coleman v Power at [81] that insults are part of political communication. Hayne J elaborated on that proposition, at [208]-[209]:

37. [154]

    Hayne J said the following at [220]:

38. [155]

    Crennan, Kiefel and Bell JJ likewise held that a law with the purpose of ensuring the civility of discourse in public could not meet the Lange test: [292]. In concluding that the law did not infringe the implied freedom their Honours were satisfied that the purpose of the law was not the preservation of civil discourse, but rather the prevention of the misuse of postal services to effect an intrusion of seriously offensive material into a person’s home or workplace: [348]. Their Honours considered that a purpose of preventing citizens from such intrusion is not incompatible with the maintenance of the constitutionally prescribed system of government: [349].

39. [156]

    Recognising that the constitutionally protected system of representative and responsible government entails tolerance of a certain level of incivility and disharmony does not mean that there is no room for legitimate regulation in order to maintain standards of public order. As explained at [72] above, the pre-existing legal regime in New South Wales which provides the constitutional “baseline” against which the impugned provisions are being measured includes various offence provisions directed to such matters as violent disorder, incitement of violence and hatred and advocating force or violence against a targeted group.

40. [157]

    The State sought to emphasise that even if the purpose of the impugned provisions is understood as being to discourage public assemblies in the interests of protecting the community and preserving social cohesion, that should be seen as confined to the particular context of the period following a terrorist act. That qualification is accurate, given that a PARD may only be made where an authorisation has been given under s 6 of the TPP Act or a declaration made under Pt 2AAA of the TPP Act. In each case the context must be the occurrence of an incident that is, is likely to be or is believed to be a terrorist act. However, it does not avoid the constitutional problem with the impugned provisions. A terrorist act may prompt particularly acute feelings of anxiety and tension within the community. But that does not make it any more constitutionally permissible to seek to address the social repercussions of the event by quelling all public assemblies in a particular area in the name of preserving social cohesion. That remains a constitutionally illegitimate purpose even if there may be a perceived need for special measures.

41. [158]

    The State’s fallback position is that the impugned provisions may be seen as having more than one purpose. Mr Lim submitted that even if one purpose of the law (namely discouraging protest) is seen as being incompatible with the constitutionally prescribed system of government, another purpose of the law (being to preserve social cohesion) is compatible with that system. From this premise, Mr Lim sought to draw on statements in the authorities to the effect that a law may be justified by a legitimate purpose notwithstanding the existence of an illegitimate purpose (while acknowledging that the issue remains unsettled): Ravbar at [392]-[394] (Jagot J), cf Gordon J at [140] (with whom Edelman and Steward JJ agreed). We do not accept the premise of the argument. It involves an artificial distinction between the discouragement of public assemblies and the protection of social cohesion. It is not appropriate to isolate the discouragement of public assemblies as an object of the law without identifying what purpose that was intended to serve. The purpose of the law was to discourage public assemblies in order to protect social cohesion. This is not a situation where the law has a constitutionally legitimate purpose that is separate from its illegitimate purpose. It is therefore unnecessary to consider the unresolved question of principle referred to in the State’s submissions.

42. [159]

    For these reasons, we conclude the impugned provisions were enacted for a purpose that is not compatible with maintenance of the system of responsible and representative government for which the Constitution provides. That conclusion is true for all the impugned provisions, given that they were enacted as part of a coordinated scheme and to serve the same ends. As such, the second of the questions identified at [98] above should be answered in the negative.

43. [160]

    As we have explained above, we reject the State’s submission that the purpose of the impugned provisions was to restrict mass demonstrations that had a particular tendency to cause another part of the community to feel threatened or uneasy. The impugned provisions have a broader purpose directed to the link between community safety and the holding of any public assembly. Even on the narrower characterisation of legislative purpose, however, the impugned provisions do not pursue a constitutionally legitimate end.

44. [161]

    In circumstances where the impugned provisions have been shown to have been enacted for a constitutionally impermissible purpose, the State cannot avoid the conclusion of invalidity by pointing out that the practical effect of any particular PARD will depend upon how the Commissioner or Deputy Commissioner chooses to exercise the power conferred by s 23B. The constitutional vice lies in the purpose for which the power has been conferred. Any exercise of power by the executive will necessarily be in pursuit of the illegitimate purpose. In those circumstances, no question of reading down the power arises and it cannot be said that any challenge to validity ought properly be directed to particular exercises of the statutory power, rather than the power itself. This is not a situation where the enabling power, on its proper construction, complies with the constitutional limitation, without any need to read it down to save its validity, such that attention should be directed instead to any particular exercise of the power in question: see Wotton at [22]. Nor is this a situation where the problem of a potentially unconstitutional operation could be addressed by disapplying the impugned provisions in relation to applications that would be invalid because they impose an unjustified burden: see Palmer at [201]-[202] (Gordon J), [219]-[220] (Edelman J), Ravbar at [226]-[228] (Edelman J), Farm Transparency at [268] (Edelman and Stewart JJ), [122], [123], [191] (Gordon J), but compare Gageler CJ at [102], citing Pidoto v The State of Victoria (1943) 68 CLR 87 at 111; [1944] ALR 1 at 8; [1943] HCA 37.

Are the impugned provisions reasonably appropriate and adapted to advance the legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

1. [162]

   In light of the conclusion that we have reached at the second stage of the constitutional inquiry, it is unnecessary to consider in detail the third stage. Indeed it is somewhat artificial to seek to do so, in circumstances where the Court does not accept that the impugned provisions pursue a legitimate object that is compatible with maintenance of the constitutionally entrenched system of representative and responsible government. If it is constitutionally legitimate for the State to seek to preserve social cohesion by restricting public assemblies generally for a period of time within an area fixed by executive action, then it might be seen as relatively straightforward for the State to justify the present laws (noting that the onus is on the State to do so, given the identified burden on the freedom of political communication: Unions NSW v State of New South Wales (2023) 277 CLR 627; [2023] HCA 4 (Unions (No 3)) at [30]-[33]). For example, at the necessity stage of the structured proportionality analysis it is appropriate to ask if any alternative legislative measure exists which is “as capable of fulfilling the purpose quantitatively, qualitatively and probability wise” Tajjour at [114]. Given that the impugned provisions seek to preserve social cohesion in a novel way by restricting public assemblies on the grounds that they are apt to cause tension and division in the community, it is unsurprising that there are no alternative legislative measures, including existing measures, that are capable of serving that purpose to the same extent.

2. [163]

   There could theoretically be an intermediate position, if we are wrong in our characterisation of the purpose of the law, and the State is correct in its contention that the law is directed to restricting mass assemblies of the kind that are apt to make another targeted group in the community feel directly threatened. On that hypothesis, however, it is plain that the impugned provisions are not reasonably appropriate and adapted to achieving that end. The power to make a PARD is not confined to public assemblies of a particular kind or directed towards a particular purpose, and does not allow for the officer making the PARD to differentiate between types of assemblies.

3. [164]

   Let it be assumed that the Commissioner or Deputy Commissioner perceives in the wake of a terrorist attack that in the coming 14 days there is likely to be a mass demonstration by a group associated with one particular political cause and that such an assembly is likely to be perceived as targeting a group in the community associated with a rival political cause, such that the latter community will be exposed not just to feelings of division and insecurity, but also to a heightened risk of threatening behaviour.

4. [165]

   The only option available under s 23B of the TPP Act in those circumstances would be to select a particular area within which all public assemblies would be restricted. Given the absence of any necessary geographical link between the feared public assembly and the location of those in the community who might feel threatened by such an assembly, there is no obvious reason to expect that the declared area would be confined. That particular defect may be put to one side. The more immediate problem is the broad and un-discriminating nature of the restriction that is imposed, whatever its geographical scope. For the duration of a PARD made in those circumstances, the restriction would apply not just to mass assemblies by the group in question but to any other public assembly, even one concerned with completely unrelated subject matter. The restriction would apply equally to an environmental group seeking to protest against planning laws by gathering outside a council office or a collection of individuals seeking to protest against deaths in custody outside a police station. It would apply to a protest outside Parliament House against laws restricting public assemblies. That is so notwithstanding the lack of any rational connection between the holding of assemblies of that kind and a concern about a particular group in the community being targeted in other, unrelated public assemblies. Perhaps most paradoxically of all, it would apply to a proposed public assembly in support of social cohesion.

5. [166]

   Given that a PARD applies to all public assemblies within the coming 14 days, the Commissioner or Deputy Commissioner can have no way of knowing what public assemblies will be affected, or what degree of risk to other members of the community (if any) might be entailed by any given assembly. There is no option under the impugned provisions other than to simply sweep up all public assemblies and subject them to the same restriction. The State failed to demonstrate why, particularly in light of the various existing laws that already regulate protest activity, it is necessary to cast such a wide net if the goal is in fact to regulate a sub-species of public assemblies, being those that pose a particular kind of threat to others in the community.

6. [167]

   The lack of proportionality between the notionally legitimate objective and the means chosen to pursue that objective is a problem that is inherent in the power itself. One does not need to consider any particular exercise of the power in order to recognise the disproportionality. It follows that we do not accept the State’s submission that the validity of the impugned provisions cannot be determined in the abstract without considering how the discretion to make a PARD is exercised in particular circumstances. The plaintiffs are correct in submitting that there is no application of the power that can be shown to be constitutionally permissible. Certainly the State has fallen well short of demonstrating that the power conferred by s 23B of the TPP Act is “justified across the range of potential outcomes of the exercise of that discretion”: Palmer at [123]; see also [65] (Kiefel CJ and Keane J). As we have observed above in the context of considering the impermissible purpose, this is not a situation where the problem of potential invalidity can be solved by selective inapplicability of the power.

7. [168]

   For these reasons, even if the impugned provisions are to be understood as having the narrower purpose urged by the State, the impugned provisions would also fail at the third stage of the constitutional inquiry. That conclusion can be reached without any need to apply a structured proportionality approach. For completeness, however, we would conclude that the State has failed to demonstrate that the impugned provisions are necessary in the sense that there is no obvious and compelling alternative, or reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom. If the purpose is to restrict assemblies only of a particular kind because of the identifiable threats to others in the community associated with those assemblies, the obvious and compelling alternative is a law which is directed to particular assemblies based on their identifiable characteristics, not all assemblies regardless of their particular characteristics.

8. [169]

   The State relied in its submissions on various indications in the evidence, including security assessments made by the Australian Security Intelligence Organisation (ASIO), that there are heightened security concerns associated with terrorist activities and also with protest activities. The State referred in particular to regular protests in Sydney since the 7 October 2023 Hamas attack on Israel, suggesting that these and other mass protests have been linked to a degrading security environment. The material does indicate that protest activity may from time to time involve antisocial, violent and threatening behaviour. It can also amount to incitement to violence, including on the grounds of race and ethnicity. As the plaintiffs correctly submit, however, such behaviour is likely to involve an offence under one or more of the “baseline” provisions that already applied to protest activity before the Amending Act and which will continue to apply. The fact that public assemblies may be conducted in a way that includes criminal behaviour by some participants justifies the existence of laws that regulate the manner in which public assemblies occur. It does not justify a new regime which restricts in advance the holding of any public assembly within a declared area, without any regard for (or any capacity for the relevant executive decision-maker to assess) the type of public assembly or the conduct of participants in the assembly. ASIO’s concerns have been directed to the adverse security implications, including associated social tension and a degrading threat environment, associated with particular types of public assemblies, not with all public assemblies.

9. [170]

   To the extent that the material corroborates a concern about the link between particular types of mass demonstrations and resulting fear in other parts of the community, that does not avoid the three constitutional defects we have already addressed. The first is that the impugned provisions have a broader object than simply targeting assemblies having that particular propensity. The second is that quelling one particular form of political communication in the interests of protecting another part of the community from a sense of unease or threat (not associated with any proximate physical threat) is not a constitutionally legitimate purpose. The third is that even if this were a constitutionally legitimate purpose, the impugned provisions apply disproportionately to all public assemblies, without any mechanism for tailoring the restriction to mass assemblies that are said to have the particular consequence of causing another part of the community to feel threatened in such a way.

Does the Court have jurisdiction to determine the validity of the impugned provisions? If so, should it be exercised?

1. [171]

   The State submitted that the Court lacks jurisdiction to determine the challenge to the impugned provisions. In the alternative, the State submitted that if the Court does have jurisdiction it should decline to exercise it. These two arguments involve a number of overlapping elements, reflecting the intersection in federal jurisdiction of considerations going to the existence of a Chapter III “matter”, standing, justiciability and prudential considerations relating to the determination of constitutional questions. Where the relevant question is whether federal jurisdiction has been invoked with respect to a “matter”, questions of standing are subsumed within that issue: Croome v The State of Tasmania (1996) 191 CLR 119 at 132-3; [1997] HCA 5 (Croome); Unions (No 3) at [15]; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 (Pape) at [50]-[51], [152], [273].

2. [172]

   The critical point from the State’s perspective is that the PARD is no longer in force and cannot now be revived. The impugned provisions are therefore dormant, and the validity of those provisions has no immediate legal significance for the plaintiffs. That will remain the case until a further PARD is made, which the State says is no more than a speculative possibility. The State’s argument proceeds on the basis that there was a Chapter III matter in respect of which the plaintiffs did have standing when proceedings were commenced, but this ceased to be the case on 17 February 2026 when the PARD lapsed.

3. [173]

   The High Court made clear in Unions (No 3) that it is not sufficient that a matter existed at the commencement of proceedings. Where circumstances change there may cease to be a matter amenable to determination in the exercise of federal jurisdiction: at [13]-[22]. An aspect of this analysis is that a plaintiff may have standing to commence proceedings, but may lack standing by the time the proceedings fall to be determined by a court. The State argues that the present case is an example of this phenomenon. While acknowledging that the plaintiffs had standing and a Chapter III matter existed at the commencement of proceedings, the State argues that the plaintiffs have not had standing since the PARD lapsed and likewise there is no longer a “matter”.

4. [174]

   The State emphasises that this is a question of jurisdiction. If there is no longer a justiciable Chapter III matter, as the State contends, the Court lacks jurisdiction to make declarations of invalidity.

5. [175]

   One point of distinction between Unions (No 3) and the present case warrants immediate emphasis. In Unions (No 3) the plaintiff sought to challenge the validity of certain provisions which had been repealed prior to the hearing in the High Court. The case therefore transitioned from a challenge to the law that was in force to a case about the validity of past laws. It was in that context that the Court held that there was no longer a matter amenable to the exercise of federal judicial power. The plaintiffs in that matter argued, unsuccessfully, that there remained a live dispute about the past invalidity of the repealed provisions: see 629. That past state of affairs did not generate a “matter”. Nor did the possibility of laws of a similar kind being enacted in the future. The High Court held that a court exercising federal judicial power cannot be asked to rule on the validity of possible future legislation that might be materially similar to past legislation: Unions (No 3) at [27].

6. [176]

   The situation in the case before us is different. The impugned provisions are still in force. The plaintiffs challenge to the impugned provisions remains, as it has been since commencement of the proceedings, a challenge to the governing law in the form of the impugned provisions. The existence of the PARD was a matter relied on by the plaintiffs for the purpose of establishing their standing and, to the extent necessary, the existence of a concrete dispute requiring swift resolution. But the expiry of the PARD has not altered the substance of the plaintiffs’ claim for relief. The power to make a PARD persists. At any time, if an authorisation is given under s 6 of the TPP Act or a declaration is made under Pt 2AAA, the Commissioner or a Deputy Commissioner would be empowered to make and extend a PARD if satisfied of the necessary matters under s 23B of the TPP Act. That in turn would trigger the operation of the impugned provisions of the Summary Offences Act and LEPRA.

7. [177]

   In order for a “matter” in the constitutional sense to exist, there must be some immediate right, duty or liability to be established by the determination of the court: Re Judiciary Act 1903-1920; Re Navigation Act 1912-1920 (1921) 29 CLR 257 at 265; [1921] HCA 20 (Re Judiciary and Navigation Acts). In Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519; [2022] HCA 5 (Hobart International Airport) at [47] Gageler and Gordon JJ said (references omitted):

8. [178]

   A court cannot be empowered under Chapter III to exercise federal judicial power to make a declaration of the law “divorced from any attempt to administer that law”: Re Judiciary and Navigation Acts at 266. The judicial administration of the federal law, in the resolution of a “matter”, involves the correct application of federal law in resolving a particular claim: Fencott v Muller (1983) 152 CLR 570 at 609; [1983] HCA 12, cited in Croome at 136.

9. [179]

   A necessary element of a “matter” is that it is amenable to an exercise of judicial power in respect of which a court can grant relief which both quells a controversy between parties and is available at the suit of the party seeking such relief: Unions (No 3) at [15]. The judicial power of the Commonwealth cannot be exercised to provide advice to the executive on the validity of a law, divorced from a particular existing controversy arising in a legal proceeding where there is an existing right, duty or liability to be established by the determination of the court: Croome at 136. It is not the function of a court exercising federal jurisdiction to give legal answers or declare legal principles: Unions (No 3) at [14]. Instead a matter must be capable of resolution by legal remedy for a wrong. “A legally enforceable remedy is as essential to the existence of a matter as the right, duty or liability which gives rise to the remedy”: Abebe v The Commonwealth (1990) 197 CLR 510 at 527; [1990] HCA 14 at [31]. A “legally enforceable remedy” is an order capable of being made by a court in the exercise of coercive judicial power which, subject to appeal, authoritatively determines the question about the right, duty or liability in controversy: Hobart International Airport at [48].

10. [180]

    A declaration of right is such a remedy. A declaration has the requisite final and preclusive legal effect in quelling the controversy between the parties: Hobart International Airport at [53]. The formulation of the governing principles in Unions (No 3) directs attention to the limitations of the relief sought in any particular proceeding. In the case of declaratory relief, the critical constraint is that a declaration can only issue if it will produce foreseeable consequences for the parties: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [103].

11. [181]

    In Croome, Tasmania contended that there was no matter in respect of which the High Court had jurisdiction because the case did not raise a question about the application of the impugned laws to the plaintiffs: at 125. The laws in question criminalised sexual intercourse between males and acts of gross indecency committed by a male with another male. Tasmania pointed to the fact that no prosecution against the plaintiffs was pending or threatened. That argument was rejected. The High Court held that a matter arose because the question being raised was whether the impugned provisions operate and have operated, since their enactment in Tasmania. The absence of any existing or threatened prosecution was found not to “touch that question”: at 125. Brennan CJ, Dawson and Toohey JJ explained that where an existing law is challenged on the basis that it is inconsistent with the Commonwealth Constitution, the law being administrated is the Constitution and there is an immediate right to the proper operation of the Constitution on the law of Tasmania: at 125.

12. [182]

    Brennan CJ, Dawson and Toohey JJ held, at 125-126 (footnotes omitted):

13. [183]

    The distinction between the present case and the situation that arose in Unions (No 3) is important at least because of the operation of this principle. The analysis in Croome demonstrates that in the present case, unlike in Unions (No 3), there is an immediate right to be determined by the Court. That is because the plaintiffs allege that the impugned provisions are invalid on the basis that they are contrary to the Constitution. The continued existence of the law empowering the Commissioner or a Deputy Commissioner to make a PARD, with all of the consequences then triggered under the impugned provisions, puts the plaintiffs in a position of jeopardy about the operation of the impugned provisions upon them. Unlike in Unions (No 3), that does not involve a complaint about the validity of a past law. Nor does it involve a concern about the prospect that the legislature might act in the future to resuscitate a legislative burden on the plaintiffs. It is a complaint about the validity of existing laws, in respect of which the plaintiffs assert they have a special interest because of the way in which those laws are likely to impact on them, if and when a fresh PARD is made.

14. [184]

    As the plurality judgment in Unions (No 3) emphasised at [27], there is an important distinction between challenges concerned with administrative decisions or delegated legislation and challenges concerned with a repealed law. In the former case, for so long as the power to make an executive decision or delegation legislation of the relevant kind persists, there is an existing law that may be the subject of a declaration of right. In the latter case, that is not so.

15. [185]

    The High Court has recognised the continued existence of a “matter” in circumstances of this kind, including because foreseeable consequences will follow from relief directed to quelling a controversy about the validity of powers which may be exercised in the future. In Unions (No 3) it was accepted, at [27], that a plaintiff may in some cases be able to show that there will be foreseeable consequences from the grant of a declaration where the plaintiff can establish that, even though the particular asserted wrong has ceased, there is a risk of repetition. The plurality judgment in Unions (No 3) cited in that regard Wragg v State of New South Wales (1953) 88 CLR 353; [1953] HCA 34 (Wragg) and Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1 (Plaintiff M68).

16. [186]

    In Wragg the plaintiffs sought a declaration as to the validity of the power conferred on the Prices Commissioner by the Prices Regulation Act 1948-1949 (NSW) to fix by order the maximum price for the sale of potatoes in New South Wales, in circumstances where potatoes had been declared to be goods subject to the price fixing regime. The plaintiffs were potato growers who sold potatoes in New South Wales. Price fixing orders affecting them had been made, but they were revoked by the time of hearing of the case stated in the High Court. The underlying declaration that potatoes were declared goods within the meaning of the Prices Regulation Act had also been revoked.

17. [187]

    The State submitted that because there was neither a declaration nor a price fixing order in operation the plaintiffs no longer had standing to obtain a declaration as to the validity of the governing provisions: at 369. The plaintiffs argued that they still had standing in respect of a justiciable controversy, in circumstances where there remained a threat to re-enact the price-fixing orders and to again make a declaration that would bring potatoes under the control of the price fixing regime: at 369. The plaintiffs, as traders of potatoes, were said to have an interest in maintaining the suit for declarations as to the extent to which the Prices Commissioner may make price-fixing orders affecting their trade: at 370. The High Court was satisfied that the plaintiffs had standing. The attitude of the Court was described by Dixon CJ at 371 (emphasis added):

18. [188]

    In Plaintiff M68 the relevant question was whether the plaintiff had standing to seek a declaration of the unlawfulness of her detention in a regional processing centre on Nauru. That detention stemmed from the combined effect of the conditions of the plaintiff’s visa, said to arise from arrangements between the Commonwealth and Nauru, and Nauruan law. Following the commencement of proceedings and prior to hearing, the government of Nauru announced, by gazetted notice, that those who had been held in regional processing centres would instead be allowed freedom of movement on Nauru pursuant to an “open centre” arrangement. This raised an issue as to whether the plaintiff had lost standing to maintain the challenge to the lawfulness of her detention, and hence whether there was no longer a Chapter III matter. The Commonwealth submitted that the proceedings had come to be about the validity of past conduct at the time the plaintiff had been detained and any declaration sought by the plaintiff would have no foreseeable consequences for her: at [23].

19. [189]

    The High Court was satisfied that standing had not been lost, and a justiciable controversy about the validity of detention remained. French CJ, Kiefel and Nettle J held at [23] that it was sufficient that the declaration sought by the plaintiff would resolve the question as to the lawfulness of the Commonwealth’s conduct with respect to the plaintiff’s detention and whether such conduct was authorised by Commonwealth law. As that question was grounded in factual reality, it was not a hypothetical question. As to the foreseeable consequences of declaratory relief, their Honours were satisfied that the proceedings would “resolve the question whether the Commonwealth is at liberty to repeat that conduct if things change on Nauru and it is proposed, once again, to detain the plaintiff at the Centre”: at [23].

20. [190]

    Bell J was likewise satisfied that the proceedings involved the determination of a legal controversy in respect of which the plaintiff had a real interest. Her Honour was satisfied that the declaration had foreseeable consequences “given that Nauru may choose to revert to a scheme under which asylum seekers taken to it by the Commonwealth are detained”: at [64].

21. [191]

    Keane J reached the same conclusion for similar reasons. His Honour said the following, at [235], quoting Wragg at 371:

22. [192]

    Our analysis to this point has drawn out a number of the essential characteristics of a Chapter III matter. Putting to one side the element of standing (which will be dealt with in more detail below), each can be seen to be present in the controversy before this Court. The plaintiffs are seeking a determination in respect of an existing legal right, namely the validity of the impugned provisions. That involves the administration of the law, by way of enforcement of the limits on legislative power derived from the Commonwealth Constitution. It concerns a controversy between defined persons, namely the plaintiffs and the State. The legal question is grounded in real facts and cannot be described as hypothetical. The controversy is capable of being resolved judicially by relief in the form of declaratory orders that would quell the controversy and create a new charter by reference to which the question of validity is to be decided. Resolution of the controversy would produce foreseeable consequences for the parties. If the plaintiffs are successful, the risk of a repeat of the exercise of the PARD making power will be removed. The plaintiffs will no longer face the threat of their future protest activities being restricted by an exercise of power to impose a PARD.

23. [193]

    That conclusion is consistent with the conclusions reached by the High Court in Croome, Wragg and Plaintiff M68. In Croome a Chapter III matter was found to exist by reason of the existence of the impugned provisions and their potential impact on the plaintiffs, notwithstanding that there was no demonstrated risk of prosecution for particular conduct. The risk of future adverse operation of the challenged law upon the plaintiffs was sufficient. That was in keeping with the approach taken in Wragg and Plaintiff M68.

24. [194]

    The State submitted that there is a critical distinction in the present case, in that the impugned provisions can have no adverse operation on the plaintiffs unless and until an authorisation is given under s 6 of the TPP Act or a declaration made under Pt 2AAA of the TPP Act and the Commissioner or a Deputy Commissioner decides to make a PARD based on satisfaction about the relevant criteria in s 23B. However, the decisions in Wragg and Plaintiff M68 demonstrate that this is not a relevant point of distinction. In each of those cases, at the time of hearing the impugned laws and arrangements were not engaged as against the plaintiffs. That situation would only change in the future if and when administrative discretions and powers were exercised in a particular way to recreate the particular burden on the plaintiffs that had arisen in the past. Nevertheless, the potential for the existing law to be administered in this way was sufficient to give rise to a justiciable controversy, the resolution of which would produce foreseeable consequences for the parties. Contrary to the State’s submission, no principled basis for drawing a distinction with Wragg arises from the fact that the power to make a PARD under s 23B of the TPP Act can only be exercised if the decision-maker is satisfied about the existence of a particular state of affairs.

25. [195]

    The State also submitted that Wragg should not be relied on in the present context because Wragg concerned a claim under s 92 of the Constitution and at the time Wragg was decided s 92 was understood to confer personal rights. However, nothing in the reasoning in Plaintiff M68 or Unions (No 3) suggests that the authority of Wragg can or should be confined in this way.

26. [196]

    Our conclusion in the preceding paragraph is also consistent with the statement of Latham CJ in Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545 at 570; [1945] HCA 15 (quoted in Croome at 125-6) that it is “too late to contend that a person who is, or in the immediate future probably will be, affected in his person or property by Commonwealth legislation alleged to be unconstitutional has not a cause of action [in the High Court] for a declaration that the legislation is invalid”. Although Latham CJ referred in that passage to the “probability” that a plaintiff will be affected in the “immediate future”, the High Court has not maintained any requirement that a plaintiff must demonstrate such a degree of “probability” of future application of impugned legislation. Nor has the High Court limited the principle to situations where it has been shown that any repeat of a previous arrangement is likely to occur in the “immediate” future. In both Wragg and Plaintiff M68 it was sufficient that there was a risk that the laws and arrangements under challenge might in the future come to be applied again to the plaintiffs in the prejudicial way that they had in the past been applied.

27. [197]

    The State did submit that the risk in question must be more than “hypothetical, remote or theoretical”. None of those expressions finds particular support in Wragg, Plaintiff M68 or Unions (No 3). It may be accepted that a risk that is purely hypothetical or theoretical is not a material risk for these purposes. A “remote” risk could potentially be a material risk, depending on the circumstances. We do not agree that as a general proposition a “remote” risk of the repetition of executive action is necessarily inadequate. In any event, nothing turns on that issue for present purposes. We would not describe the risk of a PARD being made in the future as remote, for the reasons which follow.

28. [198]

    We consider it sufficient to find that there is a material risk that within the foreseeable future a PARD may again be made which impacts adversely on one or more of the plaintiffs in their intended protest activities. It follows that nothing turns, in our view, on the debate that developed between the parties about the degree of likelihood of that occurring. It is sufficient to observe that there is a material risk that circumstances will arise in the foreseeable future that will prompt an authorisation to be given under s 6 of the TPP Act and/or a declaration made under Pt 2AAA of the TPP Act and that if that occurs the Commissioner or a Deputy Commissioner will make a PARD that restricts the plaintiffs in their protest activities.

29. [199]

    If we are wrong in our approach, and it is necessary to identify not just a material risk but also a particular degree of likelihood, we would conclude that the State has underestimated the prospect of this occurring. In particular, it is more than a remote risk. The State submitted that it is rare for circumstances to arise that would make it possible for a PARD to be made. The State argues in this regard that an authorisation under s 6 of the TPP Act or declaration under Pt 2AAA of the TPP Act can only be made in response to a terrorist act or an act suspected of being a terrorist act. The State points to the fact that only one such authorisation has been issued and no declaration has ever been made under Pt 2AAA.

30. [200]

    The plaintiffs, while accepting that it is legally correct that a PARD can only be made following such an authorisation or declaration, say that there is a relatively high likelihood that an act of the relevant kind will occur in the foreseeable future, enlivening the possibility of an authorisation under s 6 or a declaration under Pt 2AAA, and also the possibility that circumstances would lead the Commissioner or a Deputy Commissioner to form the requisite state of satisfaction and make a PARD under s 23B. As the plaintiffs correctly submit, “terrorist act” is defined in the TPP Act in such a way as to capture acts occurring anywhere in the world. The correct starting point is therefore the prospect of an act of that kind occurring somewhere in the world. Unfortunately, as the plaintiffs submit, terrorist acts are a relatively routine occurrence around the world. Even within Australia, the risk of a future terrorist incident is relatively high, as reflected in the lifting of the National Terrorism Threat Level from “Possible” to “Probable” in August 2024.

31. [201]

    The plaintiffs are correct to draw attention to the relative breadth of the definition of “terrorist act”. Nevertheless, there is still likely to be a need for some connection with Australia or Australian authorities in order for an authorisation to be given under s 6 of the TPP Act or a declaration made under Pt 2AAA. A declaration under s 6 can only be made if the relevant officer giving the authorisation is satisfied that the exercise of the special powers conferred by Pt 2 will “substantially assist in apprehending the persons responsible for committing the terrorist act”. It does not follow that the act itself must occur in Australia or that the suspects thought to be responsible for committing the act must be located in Australia. However, it is unlikely to be a routine occurrence that the exercise of special powers in New South Wales will be thought to provide special assistance in apprehending persons responsible for a foreign terrorist act. Pt 2AAA is more closely linked to New South Wales itself. A declaration under s 24A may only be made in respect of an incident to which NSW officers are responding and planned or coordinated action by NSW officers is required to defend any persons threatened by the terrorist act or to prevent or terminate their unlawful deprivation of liberty.

32. [202]

    These are limiting factors that do substantially reduce the probability of future PARDs. Nevertheless, we are satisfied that the possibility of an authorisation being given under s 6 of the TPP Act or a declaration being made under Pt 2AAA is not remote. As to the prospect of a PARD being made if an authorisation or declaration is in place, we consider there to be a relatively high prospect of that occurring. The logic of the PARD scheme, and the breadth of the concept of “community safety” in s 23B, means that if the conditions are such as to prompt an authorisation or declaration, the Commissioner or a Deputy Commissioner may well be satisfied that it is also appropriate to make a PARD.

33. [203]

    It is unrealistic to seek to anticipate the precise form of PARD that might be made in such circumstances. However, the same features of s 23B point to the conclusion that if a PARD is made, it is likely to be one that adversely affects one or more of the plaintiffs in their protest activities. The preferred locations for protest activity are apt to be the very locations covered by a PARD, once the objects of the Amending Act are appreciated. The breadth of the PARD made on 24 December 2024 tends to confirm these inferences.

34. [204]

    The intersection between standing and the existence of a matter was addressed by Gageler and Gleeson JJ in Hobart International Airport at [49]. Their Honours, having explained that a matter involves a justiciable controversy between defined persons about an existing legal right or legal obligation, explained that justiciability of such a controversy depends on:

35. [205]

    In Croome, Brennan CJ, Dawson and Toohey JJ noted that a justiciable controversy does not arise unless the person who seeks to challenge the validity of the law has a sufficient interest to do so: at 126. A person with sufficient interest to raise a justiciable controversy as to the validity of a law is regarded as having or claiming a right to a declaration. It is the right to seek such a declaration that satisfies the requirement identified in Re Judiciary and Navigation Acts: Croome at 127.

36. [206]

    In Unions (No 3) at [16] Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ explained that what is required to establish standing varies with the nature of the relief that is sought and according to the type of controversy. Relevantly for present purposes, their Honours said (footnotes omitted):

37. [207]

    The State concedes that by virtue of their history of protest activities and their interest in undertaking protests in the area affected by the PARD the plaintiffs were affected by the impugned provisions in a different and additional way from those who do not regularly engage in such activities. That signifies that the plaintiffs had an interest in the validity of the impugned provisions, when proceedings were commenced, which was real and set them apart from others in the community who did not have such a record of activity. That is enough to have given the plaintiffs standing when proceedings were commenced.

38. [208]

    The State’s concession is properly made in light of the agreed facts about the regular pattern of protest activity by each of the plaintiffs. When considering the question of standing in circumstances where the PARD has expired, it remains relevant to consider those same facts about the plaintiffs, combined with the stated intention of each plaintiff to continue protest activities in the future and the likelihood that they will seek Form 1 authorisations as appropriate (which is inherently plausible given the historical activities of each of them).

39. [209]

    In light of the principles and authorities we have set out above, the combined effect of the history of protest activity by each of the plaintiffs and their future intention to maintain such activity is enough to demonstrate a real and sufficient interest of the kind required to support a claim for declaratory relief about the validity of the impugned provisions. The State’s argument that the standing of the plaintiffs evaporated when the PARD expired must be rejected in light of the ongoing operation of the impugned provisions and the non-remote risk that the provisions may again come to apply to the plaintiffs in a way that adversely impacts upon their activities.

40. [210]

    The plaintiffs submitted, as an alternative answer to the State’s submission that they lack standing, that one or more of them has standing in connection with private causes of action that they may be able to assert as a consequence of protest activities said to be affected by the impugned provisions.

41. [211]

    In light of our acceptance of the plaintiffs’ primary argument that they have standing to seek declarations of right irrespective of any private causes of action they may have against police officers, it is not essential to resolve the alternative argument. For completeness, however, we do not accept that standing in respect of such private rights of any of the plaintiffs has been established.

42. [212]

    Mr Hume SC submitted that both the first and third plaintiffs had been touched and arrested during the Herzog protest, that there is a possibility they will be charged and that there may be a basis to argue that the police officers who interacted with the first and third plaintiffs were purporting to exercise powers under LEPRA, including powers that were only applicable on the premise that a valid PARD was in operation. By that route, the first and third plaintiffs argue that the validity of the impugned provisions would have ramifications for their rights if they are charged with respect to their conduct during the Herzog protest.

43. [213]

    Each step in the argument involves a substantial element of uncertainty, if not speculation. Neither the first nor third plaintiff has been charged and it was not demonstrated by reference to any evidence that there is a material prospect of them being charged. As we have set out above, we do not accept the basal proposition that the police officers in question were exercising relevant powers under LEPRA. The State submits, with the support of numerous authorities, that constitutional issues ought not be decided unless there is a state of facts which makes it necessary to decide those issues. There is no way of knowing, as things stand, whether the first plaintiff or the third plaintiff has a private cause of action against police, the resolution of which would properly require resolution of the constitutional issue. In the circumstances, the requisite connection between the conduct of the first and third plaintiffs at the Herzog protest and the validity of the PARD scheme is not established.

44. [214]

    In relation to the activities of the third plaintiff at the protest in Hyde Park, it was submitted that an assault could arguably have been committed by police officers who prevented the second plaintiff and others involved in the rally to mark the anniversary of Mr Dungay’s death from moving across Hyde Park. The submission was that such an assault, if it occurred, was causally connected to the PARD that was applicable to surrounding streets, such that in the absence of the PARD the police conduct would not have occurred. That analysis again involves a number of speculative steps, including an unstated assumption about the authorisation, if any, that might have applied for the assembly if the impugned provisions were not in force. As with the first and third plaintiffs, if it were necessary to decide the issue we would not be satisfied that standing in respect of a potential private claim for assault has been established.

45. [215]

    In some circumstances, it may be inappropriate to determine a constitutional question because the supposed controversy is not one that truly requires resolution or the dispute is not sufficiently concrete to be appropriately amenable to adjudication. In Zhang v Commissioner of Australian Federal Police (2021) 273 CLR 216; [2021] HCA 16 (Zhang) at [21], the High Court referred to the unanimous observation in Lambert v Weichelt (1954) 28 ALJ 282 at 283 (Lambert v Weichelt) that “[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties”. The judgment of the Court in Zhang proceeded as follows:

46. [216]

    Their Honours at [22] referred with approval to the description of this approach in Clubb at [35]-[36] as reflecting the “usual practice” which is “based upon prudential considerations”. In Tajjour at [174] one of the prudential considerations supporting such an approach was identified as being to avoid “the risk of premature interpretation of statutes on the basis of inadequate appreciation of their practical operation”.

47. [217]

    The High Court revisited these issues in Mineralogy v State of Western Australia (2021) 274 CLR 219; [2021] HCA 30 (Mineralogy). At [56]-[59], Kiefel CJ, Gageler, Keane, Gordon, Stewart and Gleeson JJ said that the “cautious and restrained approach to answering questions agreed by the parties in a special case”, applying the principle described in Lambert v Weichelt:

48. [218]

    The State submitted that prudential considerations would tell against resolution of the present matter, even if the Court has jurisdiction. The State did not contend that there was any deficiency in the factual record relevant to determining the plaintiffs’ challenge that would stand in the way of the Court ruling on the validity of the impugned provisions. The parties have had an opportunity to adduce evidence relevant to that challenge. The State did not seek to argue that the evidence resulting from that process is deficient in the sense that there is not a sufficiently concrete controversy amenable to resolution by the Court.

49. [219]

    However, the State did argue that the abstract nature of the challenge to the impugned provisions gives rise to prudential considerations. The plaintiffs do not seek to challenge the validity of any particular exercise of power under the impugned provisions. They instead attack the validity of the power to make a PARD, and all of the provisions of the PARD scheme that operate by reference to a PARD once made. As the State emphasised, a challenge to the validity of a provision like s 23B of the TPP Act that confers discretionary power on the executive presents its own difficulties. In that connection the State emphasised that this Court was being invited to determine the validity of the impugned provisions, including the power to make a PARD, in the abstract and not in the context of a particular exercise of that power that would give shape to its operation.

50. [220]

    We do not accept the submission that prudential considerations of the kind described in Zhang and Mineralogy are engaged. There does exist a state of affairs which makes it necessary to decide the question of the validity of the impugned provisions in order to do justice in the given case and to determine the rights of the parties. The plaintiffs have chosen squarely to challenge the validity of the power to make a PARD, as they are entitled to do. The resolution of that challenge is necessary to determine the legal position and resolve the controversy between the parties. Doing so is plainly within the adjudicative function of the Court, and does not involve any trespass into the forbidden territory of advisory judgments. Declaring the impugned provisions to be invalid does not require any element of speculation about unknown factual circumstances and potential modes of operation. It flows instead from a proper application of constitutional limitations to the law as enacted.

51. [221]

    If there had been prudential considerations telling against determination of the plaintiffs’ challenge, it would be relevant to bring to bear additional considerations that might point the other way. Accepting the State’s submission about the application of prudential considerations would have significant implications for the conduct of effective litigation directed to challenging the PARD scheme in the future. In essence, it would mean that a legal challenge to the impugned provisions could only be brought and maintained if the proceedings were instituted, heard and determined while a PARD is in force. That would present severe, if not insurmountable, practical obstacles to those wishing to bring such proceedings. PARDs can operate for a maximum of 90 days but may only be extended every 14 days and, in many cases, may operate for a much shorter period of time. Preparing and running an effective constitutional challenge within such a timeframe is highly impractical, especially given the iterative 14 day nature of extensions.

52. [222]

    The point can be illustrated by the present case. The Court has been assisted by detailed written and oral submissions from experienced counsel, reflecting the complexity of the issues arising in the case. A reasonable opportunity had to be afforded for intervention by the Attorneys-General pursuant to the Judiciary Act 1903 (Cth). Time was sought (including by the State) and required for the preparation of evidence, including agreed facts necessary for the proper resolution of the proceedings. It is unrealistic to expect that proceedings of this kind could, even with the utmost expedition, be instituted, prepared, heard and determined while a PARD remains in force, without substantial compromise to the quality of the work required at every stage. That in turn suggests a highly undesirable position where the constitutional limits on State legislative power could not, in this particular area of operation, be enforced, except in a suboptimal manner. It is not in the interests of justice for important constitutional issues of this kind to be heard and decided in a disorderly way. For these reasons, even if there were prudential considerations telling against determination of the present challenge we would be inclined to say that they are outweighed by other considerations that are equally connected to the proper administration of the Constitution.

Conclusion

1. [223]

   The impugned provisions infringe the implied freedom of political communication. The State did not seek to argue that if the substance of the plaintiffs’ argument was accepted, and the Court was satisfied that it had jurisdiction which should be exercised, the declarations sought by the plaintiffs are nevertheless inappropriate or should be confined to particular impugned provisions only. We are satisfied that it is appropriate to declare that each of the impugned provisions is invalid.

2. [224]

   The orders of the Court are:

   1. (1)

      The Court declares that Part 2, Division 3A of the Terrorism (Police Powers) Act 2002 (NSW) impermissibly burdens the implied constitutional freedom of communication on government and political matters and is invalid.

   2. (2)

      The Court declares that section 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) impermissibly burdens the implied constitutional freedom of communication on government and political matters and is invalid.

   3. (3)

      The Court declares that sections 27A and 27B Summary Offences Act 1988 (NSW) impermissibly burden the implied constitutional freedom of communication on government and political matters and are invalid.

   4. (4)

      The defendant is to pay the plaintiffs’ costs.