Anti-Protest Laws Unconstitutional (NSW)

The New South Wales Supreme Court has handed down a ruling that anti-protest laws passed in February 2025 are invalid as they contravene the implied right to political communication in the Australian Constitution. The decision is likely to result in the repeal or amendment of the Crimes Amendment (Places of Worship) Act 2025. This page outlines the decision and its implications.

Lees v NSW Police

Josh Lees, an organiser for the Palestine Action Group, filed a claim in the Supreme Court on 17 March 2025, asking the court to make a declaration that laws giving police the power to break up protests that occur near a place of worship in New South Wales impermissibly infringed on the implied right to political communication contained in the constitution.

Mr Lees filed evidence that many of the most popular protest sites in Sydney were within the proximity of a place of worship. Furthermore, marches through the Sydney CBD commonly pass by places of worship. As such, the legislation had the effect of giving police the power to disperse a very wide range of protests unrelated to and not interfering with places of worship.

The anti-protest laws

The Crimes Amendment (Places of Worship) Act 2025 gives police the power to give a direction to a person or group taking place in a demonstration, protest, procession or assembly that is unauthorised and that is being held near a place of worship.This power was inserted into the Law Enforcement (Powers and Responsibilities) Act (LEPRA) 2002, as section 200(5).

The provision gives the power to issue a direction in relation to a protest that is not authorised under the Summary Offences Act 1988 and is occurring in or near a place of worship.

The police may use these move-on powers in relation to protests that:

• are not part of industrial action or an industrial dispute or campaign, and
• are not occurring at or outside Parliament House or an office of a member of Parliament, and
• are not in accordance with the authority of the commissioner of police or the person in charge of the place of worship

The police may give a direction if they believe on reasonable grounds that protesters are obstructing, harassing, intimidating, or causing fear to persons. As it is in the nature of protests to cause an obstruction, this is a very low threshold to meet. 

It is a criminal offence to disobey a move-on direction.

Freedom of political communication

The Australian Constitution does not explicitly state that we have a right to freedom of speech. However, it is well established through High Court decisions that there is an implied freedom of political communication contained in the constitution.

This implied freedom restricts the government from exercising its powers in a way that prevents the public from being informed and freely discussing political issues and government matters. However, the implied freedom of political communication can be restricted by laws where the laws are suitable, necessary, and adequate.

The parties’ arguments

Mr Lees argued that section 200(5), when read together with the rest of the Act, permitted police to direct protesters to move on if they were ‘in or near’ a place of worship (with no specific distance specified) even if there was no basis for believing that the protest was affecting people entering or leaving the place of worship.

The New South Wales police argued that the provision applied only when protesters were having an effect on persons entering or leaving the place of worship or trying to do so.

The court’s decision

Mitchelmore J found in favour of the plaintiff.

In her judgment, she noted the following:

1. Section 200(5) applies to demonstrations and protests that are ‘in or near a place of worship’, with the outer boundary of that phrase not being defined;
2. The act gives the police the power to exercise their discretion under this provision without any requirement that the persons affected by the protest are those attending or leaving the place of worship;
3. When a law infringes on freedom of political communication, courts must ask whether the purpose of the law is legitimate and whether it is reasonably appropriate and adapted to the purpose;
4. The provision gives the police wide powers to give directions in relation to genuine protests that occur in close proximity to a place of worship. The powers are not confined by reference to persons who are entering or leaving the place of worship, the times at which persons are likely to be using the place of worship, or the subject matter of the protest.
5. The purpose of the provision is to address conduct that aims to intimidate persons from practising their faith; however, the provision is not reasonably appropriate and adapted to that purpose. It is constructed in a way that goes beyond what is necessary. The restriction imposed is not proportionate to the purpose it serves. The result is that police may use this power to make a direction in relation to a protest that is not aimed at the place of worship and where the behaviour of the participants does not affect persons accessing the place of worship.

In summary, the court found that the laws could be used to silence protesters whose actions were not affecting worshippers and that this was contrary to the constitutional right to freedom of political communication.

Consequences of the decision

The Supreme Court decision is likely to result in further amendments being made to LEPRA to allow the provision to function as it was intended: to empower NSW Police to disrupt protests that are harassing or intimidating persons trying to access places of worship, without interfering with the right to protest more broadly.

In the meantime, police will not be able to rely on section 200(5) as it has been found to be invalid. This will mean that protests can continue to be held in the vicinity of places of worship in New South Wales, and that the police may not issue move-on directions solely based on that proximity.

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Fernanda Dahlstrom

Content Editor

Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.