Common(wealth) Knowledge #57: Proposed NSW anti-protest legislation challenges constitutional rights

The NSW Premier says protesters may be banned from streaming protests.

New South Wales premier Chris Minns has revealed he is seeking a meeting with Meta, the social media company behind Facebook and Instagram, about stopping protesters in the state from broadcasting their protests on the social media platforms. This raises some worrying questions about the implied freedom of political communication within New South Wales.

According to the Premier, protesters engaged in illegal activities depend on social media platforms to broadcast their protests and draw attention to themselves and their activities. Preventing them from doing so would disrupt their ‘business model.’

The move has received the support of the Liberal/National opposition, which would allow any legislation developed by the government to pass both the Legislative Assembly and Legislative Council.

Although the Premier singled out the climate action group Blockade Australia, it may apply to any illegal protest activities, like anti-lockdown protests during the COVID-19 pandemic and trespassing on private property as part of a protest.

However, many concerns have been raised over whether this law would unlawfully limit the implied freedom of political communication.

The implied freedom of political communication is an implied right in the Australian Constitution, based on the notion of representative democracy. The High of Australia has held that it is necessary for Australians to be able to freely discuss and participate in political issues and activities, in order for elections to be truly democratic. It also allows Australians to hold their political representatives accountable for their actions.

As seen in Common(wealth) Knowledge #38, this started out as a principle similar to the USA’s First Amendment, although in more recent years it has shifted towards ‘political equality,’ with all people entitled to an ‘equality of opportunity’ to participate in Australian democracy.

There are no absolute rights in Australia. Accordingly, the implied freedom can be limited, but that limitation must be necessary, proportionate, justified, and for a legitimate purpose. For example, in Cotterill v Romanes [2023], the Victorian Court of Appeal upheld the state’s ‘stay at home orders,’ stating that the public health concerns outweighed the implied freedom of political communication, including the freedom to protest.

However, this doesn’t mean that all anti-protest laws have been successful.

During the first half of 2020, at a low point in the daily case count in New South Wales, the New South Wales Supreme Court allowed a Black Lives Matter protest, which would follow social distancing and masking requirements, to go ahead, in Commissioner of Police (NSW) v Gray [2020].

Famously, in Brown v Tasmania (2017), the High Court struck down Tasmanian anti-protest legislation. The High Court said that the punishment for protesting was so high and disproportionate that it would discourage all protests from happening, in violation of the implied freedom of political communication.

Justice Gageler argued that the criminal punishment for protesting on the site of logging operations went so far to prevent anti-logging and forestry protests that it “could not even be described as using a blunt instrument to achieve that purpose.”

If the New South Wales government wants to disrupt in-person protests, which Justice Adamson in Commissioner of Police (NSW) v Gray was more important and effective than online protests, it has to play a careful balancing act. Common(wealth) Knowledge #37 went more in-depth on the factors in play when it comes to anti-protest laws.

A blanket ban like the New South Wales government is proposing would likely be struck down for violating the implied freedom of political communication. Given how important digital broadcasts are to the so-called “business model” of protests, as the NSW government acknowledges, it is likely that a court would reach the same conclusion that the High Court did in Brown v Tasmania, as it would likely deter all protests of any kind.

However, this is not the only recent issue involving the implied freedom of political communication. The Australian government has introduced legislation to ban Nazi swastikas, the SS logo, and the Islamic State flag. The details of this legislation were covered in more depth here.

Some opponents of Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) have made free speech arguments against it. However, any challenge would be unlikely to succeed. Given that the Racial Discrimination Act 1975 (Cth) has not been successfully challenged over its anti-hate speech provisions, and recognising that there is no absolute right to freedom of speech in Australia, it is highly unlikely that this ban could be overturned on this ground.

Ultimately, while some limitations on the implied freedom of political communication will be struck down by the courts, especially ones including blanket conditions, it is important to remember that, in the words of Justice Gageler in McCloy v NSW (2015), “the freedom constitutionally afforded to political communication is not the laissez-faire of an unregulated marketplace of ideas.”

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Sources:

Brown v Tasmania (2017) 261 CLR 328.

Commissioner of Police (NSW) v Gray [2020] NSWSC 867.

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Cotterill v Romanes [2023] VSCA 7.

Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth).

McCloy v NSW (2015) 257 CLR 178; [2015] HCA 34.

Racial Discrimination Act 1975 (Cth).