Supreme Court New South Wales

• Medium Neutral Citation: Kvelde v State of New South Wales [2023] NSWSC 1560
• Hearing dates: 10 May 2023
• Date of orders: 13 December 2023
• Decision date: 13 December 2023
• Jurisdiction: Common Law
• Before: Walton J

Decision

(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.

(2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.

(3) The Summons filed 12 October 2022 is otherwise dismissed.

(4) Each party should pay their own costs.

(5) Liberty is granted to the parties to apply by writing to the Associate to Justice Walton within 21 days of these orders to vary the terms of the declarations and orders.

(6) If possible, any exercise of the liberty in order (5) be dealt with on the papers. But in the event that either party wishes to have a hearing on the terms of the declarations and orders or question of costs, the parties should bring in Short Minutes of Order with an agreed programme for the disposition of the relevant issues.

Catchwords

CONSTITUTIONAL LAW — Standing – whether plaintiffs have standing to challenge the validity of s 214A of the Crimes Act 1900 (NSW) – the plaintiffs’ have standing.

 

CONSTITUTIONAL LAW — implied freedom of political communication – construction of impugned provisions – the nature of the burden - whether the implied freedom is burdened – whether there is an incremental effect by the impugned law on the implied freedom – whether burden inconsequential – burden found -– structured proportionality analysis –impugned provisions are legitimate in their purpose – suitable for purpose – lack of necessity – inadequacy in its balance - subsection 214A(1)(c) is invalid in part – standard use words as to proportionality not reasonable – subsection 214A(1)(d) is invalid.

 

CRIMINAL LAW – protesters – validity of legislation – freedom of political communication – Crimes Act 1900 (NSW) - Crimes Amendment (Major Facilities) Regulation 2022 (NSW) – subsection 214A(1)(c) invalid in part – subsection 214A(1)(d) is invalid.

 

ADMINISTRATIVE LAW — Validity of regulation – Roads Act 1993 (NSW) - Roads and Crimes Legislation Amendment Act 2022 (NSW) - regulation is valid.

Legislation Cited

Beverage Container Act 1975 (SA)

Beverage Container Act Amendment Act 1986 (SA)

Crimes Act 1900 (NSW), ss 195, 211, 213, 214A, 217, 428B, 578C(2), (7)

Crimes Amendment (Major Facilities) Regulation 2022 (NSW)

Crimes Regulation 2000 (NSW)

Criminal Appeal Act 1912 (NSW), s 5

Criminal Code (Tas), ss 122, 123

Electoral Funding Act 2018 (NSW), ss 29, 35

Forest Management Act 2013 (Tas)

Human Rights (Sexual Conduct) Act 1994 (Cth)

Interpretation Act 1987 (NSW), ss 23, 24, 31, 42

Judiciary Act 1903 (Cth), ss 39, 78A, 78B

Police Offences Act 1890 (Vic), s 6

Protection of the Environment Operations Act 1997 (NSW), s 144

Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 2

Roads Act 1993 (NSW), ss 58, 59, 60

Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW), cl 48A

Roads and Crimes Legislation Amendment Act 2022 (NSW)

Roads Regulation 2018 (NSW)

Summary Offences Act 1988 (NSW), ss 8 23, 24

The Constitution, ss 24, 68, 76(i), 77(iii), 128

Transport Administration Act 1988 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 1.22, 1.23, 1.24

Workplaces (Protection from Protesters) Act 2014 (Tas)

Cases Cited

Al Mana Lifestyle Trading L.L.C. & Others v United Fidelity Insurance Company PSC and Others [2023] EWCA Civ 61; [2023] All ER (D) 14 (Feb)

Al-Kateb v Godwin (2004) 219 CLR; [2004] HCA 37

Athavle v State of New South Wales (2021) 290 FCR 406; [2021] FCA 1075

Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3

Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13

Auburn Municipal Council v Ivanoff (1964) 10 LGRA 258

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53

Beatty v Gillbanks (1882) 9 QBD 308; [1881-5] All ER Rep 559

Boyce v Paddington Borough Council [1903] 1 Ch 109

Breen v Sneddon (1961) 106 CLR 406; [1961] HCA 67

Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43

Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 22; (2022) 110 NSWLR 145

Cam & Sons v Chief Secretary (1951) 84 CLR 442; [1951] HCA 59

Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1

CB v Director of Public Prosecutions NSW (2013) A Crim R 522; [2013] NSWSC 618

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41

City of Brunswick v Stewart (1941) 65 CLR 88; [1941] HCA 7

Clements v Bull (1953) 88 CLR 572; [1953] HCA 61

Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19

Commission of Police v Rintoul [2003] NSWSC 662

Commissioner of Police v Allen (1984) 14 A Crim R

Commissioner of Police v Jackson [2015] NSWSC 96

Commissioner of Police v Vranjkovic (Unreported, NSWSC, 28 October 1980)

Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579; [1921] HCA 44

Cordingley v Cheeseborough (1862) 4 De GF & J 379; (1862) 45 ER 1230

Croome v State of Tasmania (1997) 191 CLR 119; [1997] HCA 5

Crowe v Graham (1968) 121 CLR 375; [1968] HCA 6

Director of Public Prosecutions v Belani (2005) 64 NSWLR 319; [2005] NSWSC 1013

Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; [1990] HCA 5

Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63

Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174

Environment Protection Authority v N (1992) 26 NSWLR 352; (1992) 59 A Crim R 408

Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23

Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31

Fitzgerald v Montoya (1989) 16 NSWLR 164; (1989) 40 A Crim R 105

Fletcher v Harris [2005] ACTSC 27

Gas Fuel Corporation (Vic) v Comptroller of Stamps [1964] VR 617

Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11

Haywood v Mumford (1908) 7 CLR 133; [1908] HCA 62

He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43

Henshaw v Mark (1997) 95 A Crim R 115

Hubbard v Pitt [1976] QB 142

Hussein v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2006] FCA 286

Jobling v Blacktown Municipal Council (1969) 17 LGRA 92; [1969] 1 NSWLR 129

Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25

Lendlease Building Contractors Pty Limited v Australian Budling and Constructions Commissioner (No 2) (2022) 314 IR 378; [2022] FCA 192

Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31

LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490; [2021] HCA 18

Lygon Nominees Pty Ltd v Commissioner of State Revenue (2007) 23 VR 474; [2007] VSCA 140

Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40

Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28

Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368

McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34

McMillan v Barclay Curle & Co Ltd (1899) 2 F(Ct of Sess) 91

Melbourne Corp v Barry (1922) 31 CLR 174; [1922] HCA 56

Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53

Meriton Units Pty Ltd v Rule (Unreported, NSWSC, Needham J, 18 April 1983 at 7)

Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4

New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1; [2006] HCA 52

Nguyen v The Director of Public Prosecutions (NSW) [2023] NSWCCA 42

Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9

NSW Commissioner of Police v Bainbridge [2007] NSWSC 1015; (2007) 175 A Crim R 226

Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23

Pharmaceutical Society of Great Britain v Dickson [1970] AC 403; [1968] 2 All ER 686

Purdon v Dittmar [1972] 1 NSWLR 94

R v A2 (2019) 269 CLR 507; [2019] HCA 35

R v Edwards [1975] QB 27

R v Goreng-Goreng (2008) 220 FLR 21; [2008] ACTSC 74

R v Uddin [2017] EWCA Crim 1072; [2018] 1 All ER 1073

Re Judiciary and Navigation Acts (1921) 29 CLR 257; [1921] HCA 20

Robinson v Western Australia (1977) 138 CLR 283; [1977] HCA 46

Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45

Ruddick v Commonwealth (2020) 96 ALJR 367; [2022] HCA 9

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55

Schubert v Lee (1946) 71 CLR 589; [1946] HCA 28

Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4

South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3

South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39

Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63; [2003] FCAFC 237

Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209

Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28

Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35

The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23

Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33

Tunney v Keehn; Ex parte Keehn [1977] Qd R 6

Tyne Keelmen v Davison (1864) 16 CBNS 612

Unions New South Wales v New South Wales (2023) 407 ALJR 277; [2023] HCA 4

Unions New South Wales v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58

Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19

Watson v Trenerry (1998) 122 NTR 1; (1998) 100 A Crim R 408

Will v Brighton (2020) 104 NSWLR 170: [2020] NSWCA 335

Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56

Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2

Texts Cited

Delegated Legislation in Australia (2017)

Introduction to the Study of the Law of the Constitution, 8th ed (1915)

Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) 778

New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 30 March 2022

Roads and Crimes Legislation Amendment Bill 2022 (NSW)

Shorter Oxford English Dictionary (6th ed.) Shorter Oxford University Press

• Category: Principal judgment
• Parties: Helen Kvelde (First Plaintiff); Dominique Jacobs (Second Plaintiff); State of New South Wales (First Defendant)
• Representation: Counsel: S Free SC (Plaintiffs); F Graham (Plaintiffs); E Jones (Plaintiffs); D Farinha (Plaintiffs); M G Sexton SC (Defendant); M O Pulsford (Defendant); Solicitors: Environmental Defenders Office Ltd (Plaintiffs); Crown Solicitor’s Office (Defendant)
• File Number(s): 2022/304510

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was passed in the NSW Legislative Assembly. The Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 less than 30 hours after the Bill was introduced for the first time in NSW Parliament. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Section 214A(1) provides as follows:

214A Damage or disruption to major facility

(1)    A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct—

(a)    causes damage to the major facility, or

(b)    seriously disrupts or obstructs persons attempting to use the major facility, or

(c)    causes the major facility, or part of the major facility, to be closed, or

(d)    causes persons attempting to use the major facility to be redirected.

Maximum penalty—200 penalty units or imprisonment for 2 years, or both.

The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) amended cl 48A to its present form to include the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act.

On 12 October 2022, Ms Helen Kvelde and Ms Dominque Jacobs (the plaintiffs), sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) are invalid. The State of New South Wales (the State) opposed the relief sought.

The plaintiffs both had a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports about environmental and climate change issues. Unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They have, therefore, an interest in knowing whether they are required to observe the law. The Court held that the plaintiffs do not merely have strong political beliefs but rather also have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions.

Croome v State of Tasmania (1997) 191 CLR 119; [1997] HCA 5; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 followed.

The principal issues for the Court were:

1.   Whether s 214A of the Crimes Act is invalid because it infringes upon the implied freedom of political communication (“the implied freedom”) and thus, is beyond the power of the Parliament of New South Wales; and

2.    Whether cl 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”).

The Court held:

As to s 214A of the Crimes Act

1.   Subsection 214A(1)(c), so far as the provision concerns the closure of part of a major facility and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication.

2.    Environmental protests do constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends. The nature of the burden is demonstrated by the impugned provisions directly targeting protest activities and is not eliminated or reduced to the point of insignificance by subss 214A(4), (5) or (6).

Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 applied.

3.    The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. The impugned provisions in this case were found to restrict the implied freedom beyond valid existing laws, thereby constituting an incremental burden on the ability of persons to engage in political communications, such as environmental issues, which are capable of having a bearing on electoral choice.

Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35; Schubert v Lee (1946) 71 CLR 589; Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23; Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 applied; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 followed.

4.   The State contended the implied freedom in this matter was “slight” and “so slight as to be inconsequential.” The submission conveyed that in those circumstances the first question should be answered in the negative. Having regard to the relevant authorities that proposition needs to be approached with considerable caution. The correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms.

Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 discussed; Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 applied.

5.    Hence, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom in their terms, operation, and effect and must be justified.

Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35; Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43; Unions New South Wales v New South Wales (2023) 407 ALJR 277; [2023] HCA 4; Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23; McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 followed.

6.    The purpose of the impugned provisions is legitimate in its purpose.

Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43; Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 followed.

7.    The impugned provisions are capable of preventing serious disruption or obstruction and therefore, the impugned provisions were found to have a rational connection to the purpose of deterring disruption and therefore suitable for the legitimate purpose. It is unclear on the authorities whether the test of capability might properly be conditioned by a requirement that there needs to exist a real, substantial, or direct connection to the purpose. However, the Court held that the test is no more demanding than that the law is simply capable of realising the purpose of the law.

Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19 applied; Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 discussed.

8.    The impugned provisions have failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) advanced by the plaintiffs may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect.

Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 applied; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 considered; [1990] HCA 1. Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19

9.    The effect of the impugned provisions on the implied freedom significant outweighs benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves and hence, s 214A(1) is not adequate in its balance.

Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11; McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23; Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 22; (2022) 110 NSWLR 145 LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490; [2021] HCA 18 followed.

As to cl 48A(1) of the Roads Regulation

1.    The challenge to the validity of the Regulation (cl 48A(1)(a) and (f) must fail. Clause 48A(1)(a) does not conflate two concepts which the legislation intended to be separate. Ultimately, cl 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness.

2.    The exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.

Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3; R v Goreng-Goreng (2008) 220 FLR 21; [2008] ACTSC 74; Athavle v State of New South Wales (2021) 290 FCR 406; [2021] FCA 1075; Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 followed; Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 discussed.

JUDGMENT

INTRODUCTION

1. By a Summons filed 12 October 2022, the plaintiffs, Ms Helen Kvelde and Ms Dominque Jacobs, sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) (together, the “impugned provisions”) are invalid. The plaintiffs submitted that:

1. Section 214A of the Crimes Act is invalid because it infringes the implied freedom of political communication (“the implied freedom”) and is thus beyond the power of the Parliament of New South Wales; and

2. Clause 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”).

2. The defendant, the State of New South Wales (“the State”), opposed the relief. Before getting to the merits, the State submitted that the plaintiffs do not have standing to challenge the validity of either provision because the question is hypothetical and not justiciable. The question central to whether the plaintiffs have standing was whether there is a “matter” before the Court. This needs to be resolved first, after a review of the evidence. Only if it is resolved in the plaintiffs’ favour should the Court proceed to the merits of the plaintiffs’ challenge to the validity of s 214A of the Crimes Act.

3. It must also be stated at the outset that it is not part of this Court’s function to pass judgment on the political wisdom of the impugned provisions: Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 439 [58]; Nicholas v The Queen (1998) 193 CLR 173 at 197 [37] (Brennan CJ). The role of the Court is to determine questions of law. For the reasons below, the plaintiffs have standing to bring the challenges to both s 214A of the Crimes Act and cl 48A(1) of the Roads Regulation. Section 214A of the Crimes Act in part infringes the implied freedom of political communication and, to that extent, exceeds the legislative power of the Parliament of New South Wales. Clause 48A(1) of the Roads Regulation is not invalid because it does not exceed the regulation-making power contained in the Roads Act.

NOTICE OF CONSTITUTIONAL MATTER

4. At the hearing, I was satisfied that the plaintiffs had filed a Notice of a Constitutional Matter as required by r 1.22(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). This Notice was served to the Attorneys-General of the Commonwealth, the States (save for the State of New South Wales), the Australian Capital Territory and the Northern Territory as required by s 78B(1) of the Judiciary Act and r 1.23(1) of the UCPR.

5. An affidavit of service of Olivia Freeman, affirmed 24 October 2023, was filed attesting to the fact that the Notice was served on 13 October 2022 as required by r 1.24 of the UCPR. At the hearing, I was satisfied that a reasonable time has elapsed since the giving of the Notice to the Attorneys-General for the question of intervention in the proceedings or removal of the cause to the High Court. No Attorneys-General exercised their right under s 78A(1) of the Judiciary Act to intervene or their right under s 40(1) of that Act to have the proceedings removed to the High Court.

THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION

6. The implied freedom is essential to the maintenance of the system of representative and responsible government for which the Commonwealth Constitution provides. The implied freedom protects “the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth”: Brown v Tasmania (2017) 261 CLR 328 (“Brown”) at [88] (Kiefel CJ, Bell and Keane JJ). The reason for the implication lies in the “protection of political communication on which depends the efficacy of electoral accountability for the exercise of legislative and executive power with the constitutionally prescribed national system of representative and responsible government”: Brown at [162] (Gageler J (as his Honour then was)).

7. The freedom has been recognised to be "of such importance to representative government that any effective statutory burden upon it must be justified”: LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490; [2021] HCA 18 (“LibertyWorks”) at [45] (Kiefel CJ, Keane and Gleeson JJ).

8. The High Court has adopted a three-part test to establish whether a law contravenes the implied freedom: McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (“McCloy”) at [1]-[2]; Brown at [104] (Kiefel CJ, Bell and Keane JJ), [155]-[156] (Gaegler J), [277] (Nettle J) and [481] (Edelman J). The test was re-stated in Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 (“Clubb”) as follows at [5]:

1. Does the law effectively burden the implied freedom in its terms, operation or effect? (“the first question”).

2. If “yes” to question one, 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? (“the second question”).

3. If “yes” to question two, 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? (“the third question”). ^[1]

THE LEGISLATIVE AND REGULATORY REGIME

The Crimes Act Regime

9. On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was introduced in the NSW Legislative Assembly and was declared an “urgent bill”. On that same day, it was read three times and passed the Legislative Assembly. The very next day (on 31 March 2022), it was introduced in the NSW Legislative Council. The following day (on 1 April 2022), the Bill passed the Legislative Council with amendments and was returned to the Legislative Assembly. The Legislative Assembly agreed to the amendments and the Bill received the Royal Assent on that same day. As s 2 provides that the Act commences on the date of assent, the Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 (Interpretation Act 1987 (NSW) ss 23(1)(b) and 24 (“Interpretation Act”)), less than 30 hours after the Bill was introduced for the first time in NSW Parliament.

10. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Relevantly, s 214A of the Crimes Act provides as follows:

214A Damage or disruption to major facility

(1)    A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct—

(a)    causes damage to the major facility, or

(b)    seriously disrupts or obstructs persons attempting to use the major facility, or

(c)    causes the major facility, or part of the major facility, to be closed, or

(d)    causes persons attempting to use the major facility to be redirected.

Maximum penalty—200 penalty units or imprisonment for 2 years, or both.

(2)    It is a defence to the prosecution of an offence against this section if the person charged proves that the person had a reasonable excuse for the conduct.

(3)    A person does not commit an offence under this section if the conduct forms part of the following—

(a)    industrial action,

(b)    an industrial dispute

(c)   an industrial campaign.

(4)    A person does not commit an offence under this section if the conduct occurs—

(a)    at the workplace at which the person works, or

(b)    at a workplace owned, occupied, operated or used by an employer of the person.

(5)    This section does not apply to the extent that it prohibits conduct in relation to—

(a)    Parliament House, or

(b)    an office of a member of parliament.

(6)    A person does not commit an offence under this section for anything done or omitted to be done in accordance with the consent or authority of—

(a)    the NSW Police Force, or

(b)    another public authority, or

(c)    for a privately owned major facility—the owner or operator of the facility.

(7)    In this section—

major facility means the following, whether publicly or privately owned—

(a)    a railway station or other public transport facility prescribed by the regulations,

(b)    a private port within the meaning of the Ports and Maritime Administration Act 1995, or another port prescribed by the regulations,

(c)    an infrastructure facility, including a facility providing water, sewerage, energy, manufacturing, distribution or other services to the public, prescribed by the regulations.

11. Within a few days of the Amendment Act, and thereby s 214A of the Crimes Act, commencing, the Crimes Amendment (Major Facilities) Regulation 2022 (NSW) came into effect. This Regulation inserted a new cl 4A and Sch 1 into the Crimes Regulation 2020 (NSW) (“Crimes Regulation”) to prescribe the facilities falling under the definition of “major facilities” in s 214A of the Crimes Act. It is unnecessary to set out the entirety of cl 4A and Sch 1. It is suffice to state that the “major facilities” prescribed for the purposes of s 214A(7) of the Crimes Act include:

1. 41 railway and metro stations;

2. 2 ferry terminals (as “other public transport facilities”);

3. 2 passenger or cruise terminals (as “ports”); and

4. 18 “infrastructure facilities”, including power stations, airports, steelworks, oil terminals, an aluminium smelter, a logistics centre, the State Health Emergency Operations Centre, the Sydney Desalination Plant and the Woolworths Distribution Centre.

12. It is necessary to emphasise that the plaintiffs’ challenge is to s 214A of the Crimes Act. It is not that cl 4A and Sch 1 of the Crimes Regulation is beyond the scope of the regulation-making power in s 582, read with s 214A(7), of the Crimes Act. Thus, it can be appreciated that, whilst cl 4A and Sch 1 of the Crimes Regulation gives a flavour or example of the kind of facilities that can be prescribed as a “major facility” for the purposes of s 214A of the Crimes Act, it is not an exhaustive list of possible major facilities. The Governor can amend the Crimes Regulation to add or remove facilities prescribed for the purposes of s 214A of the Crimes Act.

13. It may be observed that the ambit of what the Governor can prescribe as a “major facility” is very broad. It can include any railway station, port, manufacturing plant or distribution centre. It need not necessarily be a publicly owned facility. Indeed, the provisions of subs (7)(c) can include private facilities, which is evident from the inclusion of the Woolworths Distribution Centre.

The Roads Act Regime

14. The Amendment Act also made amendments to s 144G of the Roads Act. Section 144G, as amended, provides as follows:

144G Damage, disruption or obstruction of Sydney Harbour Bridge and other major bridges, tunnels and roads

(1)    A person must not enter, remain on, climb, jump from or otherwise trespass on any part of the Sydney Harbour Bridge or any other major bridge, tunnel or road if that conduct—

(a)    causes damage to the bridge, tunnel or road, or

(b)    seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road.

(c)    (Repealed)

Maximum penalty—200 penalty units or imprisonment for 2 years, or both.

(2)    Without limiting subsection (1) (b), a person seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road if, as a result of the person’s conduct, the bridge, tunnel or road (or any part of the bridge, tunnel or road) is closed or vehicles or pedestrians are redirected.

(3)    Nothing in this section prohibits conduct in accordance with the consent or authority of TfNSW, the NSW Police Force or other public authority.

(4)    It is a defence to the prosecution of an offence against this section if the person charged proves that the person had a reasonable excuse for the conduct concerned.

(4A)    A person does not commit an offence under this section if the conduct occurs—

(a)    at the workplace at which the person works, or

(b)    at a workplace owned, occupied, operated or used by an employer of the person.

(4B)    This section does not apply to the extent that it prohibits conduct in relation to—

(a)    Parliament House, or

(b)    an office of a member of parliament.

(5)    For the purposes of subsection (4) but without limiting that subsection, a person has a reasonable excuse if the conduct arose from a mechanical fault or breakdown of a motor vehicle.

(5A)    A person does not commit an offence under this section if the conduct forms part of the following—

(a)    industrial action,

(b)    an industrial dispute,

(c)    an industrial campaign.

(6)    In this section—

major bridge, tunnel or road means a bridge, tunnel or road prescribed by the regulations for the purposes of this section.

vehicle includes a train.

15. Despite s 144G of the Roads Act having come into force on 3 December 2018 (Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 2), the regulations did not prescribe any bridges and tunnels within the definition of “major bridge or tunnel” until 24 March 2022. The consequence was that only the Sydney Harbour Bridge was covered by that statutory provision.

16. On 24 March 2022, the Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) inserted cl 48A of the Roads Regulation to provide that “any bridge or tunnel within the Greater Sydney Region” is prescribed for the purposes of s 144G.

17. On 1 April 2022, (the day that the Amendment Act passed the Parliament and commenced), the Roads Amendment (Major Bridges and Tunnels) Regulation (No 2) 2022 (NSW) amended cl 48A of the Roads Regulation to incorporate:

(a)    a bridge or tunnel in—

(i)    the Greater Sydney Region, or

(ii)   the City of Newcastle, or

(iii)    the City of Wollongong,

(b)    a bridge or tunnel that joins—

(i)    a main road, or

(ii)    a highway, or

(iii)    a freeway

18. On 5 April 2022, the Roads Amendment (Major Roads) Regulation 2022 (NSW) further amended cl 48A to its present form. Clause 48A of the Roads Regulation provides as follows:

48A Major bridge, tunnel or road

(1)    For the Act, section 144G, definition of major bridge, tunnel or road, the following are prescribed for the purposes of that section—

(a) a main road,

(b) a highway,

(c) a freeway,

(d) a tollway,

(e) a bridge or tunnel that joins a road referred to in paragraphs (a)–(d),

(f) a bridge or tunnel in—

(i) the Greater Sydney Region, or

(ii) the City of Newcastle, or

(iii) the City of Wollongong.

Example—

the Spit Bridge across Middle Harbour

(2)    In this clause—

Greater Sydney Region has the same meaning as in the Greater Sydney Commission Act 2015, as in force on the commencement of this clause.

19. One aspect of the challenge made by the plaintiffs is that cl 48A(1)(a)-(d) of the Road Regulation utilises the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act. The relevant provisions of the Roads Act are as follows:

46 Main roads

The Minister may, by order published in the Gazette, declare to be a main road—

(a)    any public road, or

(b)    any other road that passes through public open space and joins a main road, highway, freeway, tollway, transitway or controlled access road.

47 Highways

The Minister may, by order published in the Gazette, declare to be a highway any main road that is a principal avenue of road communication within the State.

48 Freeways

(1)    The Minister may, by order published in the Gazette, declare to be a freeway any main road that is designed to facilitate the movement of motor traffic.

(2)    On the publication in the Gazette of an order declaring a main road to be a freeway, TfNSW becomes the owner of the land on which the freeway is situated.

…

52 Tollways

(1)    The Minister may, by order published in the Gazette, declare to be a tollway—

(a)    any road that is owned by TfNSW and that is designed to facilitate the movement of motor traffic, or

(b)    any road proposed to be constructed on land owned or to be owned by TfNSW.

(2)    A public road that is declared to be a tollway ceases to be a public road by virtue of the declaration.

(3)    A tollway is not a road or road related area within the meaning of section 4 (1) of the Road Transport Act 2013 for the purposes of any Act or law, or any provision of an Act or law, prescribed by the regulations for the purposes of this section.

20. Section 54(1) of the Roads Act provides that the Minister may not make an order under Pt 5 Div 1 of the Roads Act “otherwise than on the recommendation of” Transport for New South Wales (“TfNSW”), which is a body constituted under the Transport Administration Act 1988 (NSW). The power of TfNSW to make a recommendation to the Minister is subject to the provisions of Pt 5 Div 2 of the Roads Act. It is unnecessary to elaborate in detail on the provisions of this Division. It is sufficient to summarise the process as follows:

1. TfNSW needs to give written notice of the proposed action to each roads authority for the road concerned and a reasonable opportunity for them to make submissions with respect to the proposed action (s 58(1));

2. TfNSW “must” consider the submissions made by any roads authority; whether the main road or proposed main road is or may become a major route for long-distance traffic; the amount of money available or likely to become available for the construction and maintenance of the main road or proposed main road; and other relevant factors (s 59);

3. If TfNSW decides to proceed with the action, TfNSW “must” notify any roads authority from which it has received a submission objecting to the taking of the proposed action (s 58(2)); and

4. Any roads authority aggrieved by TfNSW’s decision may appeal to the Minister and, after hearing of the appeal, the Minister may make, amend or revoke an order (or refuse to do so) (s 60).

Context of the Amendment Act and The Implied Freedom

21. The Long Title to the Amendment Act is “an Act to amend the [Roads Act] and the [Crimes Act] to create offences for certain behaviour that causes damages or disruption to major roads or major facilities…”

22. The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads and, as mentioned, amended the Crimes Act by inserting Pt 4AF. The effect of this change was to create an equivalent but not identical offence to that found in s 144G, albeit in relation to major facilities.

23. The Second Reading Speech was introduced into these proceedings through the evidence of the State without objection. In fact, both parties placed reliance on the Second Reading Speech in seeking and resisting the declarations, particularly with respect to the construction of s 214A (to the extent that issue was actually addressed by the parties), the question of whether there was an effective burden upon the implied freedom and whether there was a justification for any burden imposed. In my view, the Second Reading Speech is available for the consideration of these issues and the context of the Amendment Act to which I will now turn pursuant to s 34(2)(f) of the Interpretation Act.

24. In introducing the Bill, the NSW Attorney-General referred to recent protests at various locations and, in particular, the Spit Bridge and Port Botany which caused major disruptions to the New South Wales transport network. The Attorney-General stated:

“Members in this House would be aware of recent events staged at various locations where illegal protesters participated in activities that caused major disruptions to the New South Wales transport network. Two incidents in particular, in which men suspended themselves from structures in order to block access to Port Botany, resulted in major traffic delays around Port Botany and the Sydney Airport area, with road closures and traffic diversions. These activities followed multiple episodes of disruption on the Spit Bridge, which halted all city-bound travel on each occasion. …” ^[2]

25. The Attorney-General described the protests as unnecessarily endangering the safety of protesters and emergency services personnel and made reference to two particular incidents at Port Botany in which persons suspended themselves from structures in order to block access to Port Botany:

“Media reports indicate that, in one of the Port Botany incidents, emergency services were required to abseil to the protester to end the disruption. Not only did the protester’s actions cause significant traffic delays and economic loss; it also unnecessarily endangered the safety of the protester and emergency services personnel. …” ^[3]

26. The State called evidence regarding the protests at the Spit Bridge by Fireproof Australia protesters on 22 February and 14 March 2022 and Blockade Australia protesters at Port Botany on 22 and 26 March 2022. I will return to that evidence below.

27. The Attorney-General accepted that there were existing offences that captured conduct of the kind he had mentioned but that penalties were insufficient deterrents. The Attorney-General stated:

“Section 8 of the Summary Offences Act, which deals with offences of climbing on or jumping from buildings or other structures without reasonable excuse, carries a $1,000 fine or three months' imprisonment. It will not cover all circumstances where there is a blockade or blockage of the free passage of pedestrians and vehicles and is limited in the physical activity that it covers. Rules 125 and 236 of the Road Rules 2014, which state that drivers or pedestrians are not to unreasonably obstruct the path of any other driver or pedestrian, carry maximum penalties of $2,200. I will come to section 144G of the Roads Act 1993 later. Existing offences related to the obstruction of traffic under the Summary Offences Act 1988 and the Road Rules 2014 carry maximum fines of $440 and $2,200, respectively.

Higher penalties are available under section 144G of the Roads Act 1993, which makes it an offence for a person to enter, remain on, climb, jump from or otherwise trespass on the Sydney Harbour Bridge, or any other major bridge or tunnel prescribed by the regulations, if that conduct causes damage to the bridge or tunnel or seriously disrupts or obstructs vehicles or pedestrians. The offence is punishable by a fine of up to $22,000, two years' imprisonment or both. … bridge or tunnel in Greater Sydney is now captured by the offence; however, the offence still does not apply to thoroughfares or places other than bridges or tunnels. To address these shortcomings, the Roads and Crimes Legislation Amendment Bill 2022 amends the existing offence under section 144G of the Roads Act to ensure that the offence can be applied to major roads prescribed by the regulations alongside bridges and tunnels.

The Bill also amends the Crimes Act 1900 to create an equivalent offence that will ensure that conduct which causes damage or disruption to major facilities other than major bridges, tunnels and roads is also prohibited. The bill is not about interfering with legitimate forms of protest.” ^[4]

28. The Attorney-General further mentioned that existing laws were not a sufficient deterrent as follows:

“Protests such as those that occurred in Port Botany were not authorised under the Summary Offences Act 1988. … While there are existing offences that capture such conduct, the actions of these protesters make it clear that the penalties available for these offences are not sufficient to deter illegal protests that disrupt the lives of the people of New South Wales and that the threshold to meet the more serious offences is not being met. There are comparable offences available already, including section 6 of the Summary Offences Act, without reasonable excuse from wilfully preventing, in any matter, the free passage of a person, vehicle or vessel in a public place. That offence only carries a maximum penalty of a fine of $440.” ^[5]

29. The Attorney-General recognised that the recent protests were directed to “the enormous environmental threat posed by climate change.” ^[6] He referred to a pledge by the New South Wales Government at the United Nations Climate Change Conference regarding electric vehicles and policies by the Government to reduce the State’ s emissions.

30. The Attorney-General indicated that the Bill was not seeking to impose a general prohibition on protests and was not seeking to criminalise conduct that was already lawful. ^[7] His statements in that respect were as follows:

“The Bill in no way seeks to impose a general prohibition on protests. The Government supports the rights of all individuals to participate in lawful protest. Freedom of assembly and speech have long been recognised by Australian courts as important rights that are integral to a democratic system of government; however, the right to protest must be weighed against the right of other members of the public to move freely and not be obstructed in public places. There are plenty of other ways for individuals to express their strongly held views, and the Government will not stand by as the few seek to disrupt and dispossess the rights of many. Part 4 of the Summary Offences Act 1988, for example, contains a scheme to facilitate lawful protests under which the commissioner of police, the Supreme Court or the District Court can authorise a protest. The scheme encourages cooperation between police and protest organisers and seeks to strike a balance between the freedom of assembly and speech of protesters, on the one hand, and the rights of other members of the public not to have their lawful activity impeded, on the other hand. ^[8]

…

In response to that, there are plenty of ways that the Bill leaves for people to engage in peaceful assembly and the peaceful right of protest. But in all cases of rights, it is a question of balancing these rights against the rights of the vast majority of citizens …It really is not a case of criminalising matters that are already lawful, but rather making sure that the criminal law and the roads legislation have effective deterrents to prevent the sorts of protests that so grievously interrupt the lives of many and cause economic and community chaos.

…

The Bill will ensure that conduct which causes damage or serious disruptions on major bridges, tunnels, roads and major facilities can be appropriately deterred and punished. ...” ^[9]

31. The Attorney-General’s statement in the Second Reading Speech as to the absence of consequences arising from the Amendment Act for the right to public assembly, protest or demonstrations requires closer examination.

32. First, the Attorney-General's reference to a “right to protest” and “the peaceful right of protest” is undoubtedly a reference to a common law right to freedom of speech or peaceful assembly.

33. The substance of the Attorney-General’s observation as to such a right may be accepted in law either on the basis of the existence of a common law right to freedom of speech or peaceful public assembly (Clubb at [8] (Kiefel, Bell and Keane JJ)) ^[10] or upon the basis that protests or demonstrations are simply not prohibited under the common law, as contemplated in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 564 (“Lange”) ^[11] and incorporated within the principle of legality. The principle of legality protects freedom of speech, including political speech, which by extension incorporates protests. ^[12]

34. The operation of Pt 4 of the Summary Offences Act 1988 (NSW) (“Summary Offences Act”) as mentioned by the Attorney-General, may, in some respects, be beside the point so far as a burden upon the implied freedom is concerned. The common law tradition is against the idea that freedom of political communication lies in the gift of the government, as the plaintiffs put it, “after the dismantling of laws for licensing the press in the 17^th Century.” ^[13]

35. Nonetheless, the right to protest at common law, or the absence of prohibitions against protests at common law, do not extend to conduct that consists of violence. ^[14]

36. Further, any common law right to protest or demonstrate may be abrogated by statute: Farm Transparency International Ltd v New South Wales (2022) 403 ALR 1; [2022] HCA 23 (“Farm Transparency”) at [140] (Gageler J (as his Honour then was)).

37. The assessment of whether the prohibitions in s 214A effectively burdened the implied freedom must be assessed by reference to the restraints which the law, including the common law, equity and statute law, already imposed upon the person’s ability to engage in the conduct, provided the law, such as it is, is already valid. These existing laws form a constitutionally valid baseline: Ruddick v Commonwealth (2022) 96 ALJR 367; [2022] HCA 9 (“Ruddick”) at [155] (Gordon, Edelman and Gleeson JJ); Brown at [109] (Kiefel CJ, Bell and Keane JJ), [181] and [188] (Gageler J (as his Honour then was)), [259] (Nettle J, [357], [393], [411] and [420] (Gordon J) and [557]-[558] (Edelman J).

38. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a political communication which the law may already validly restrict: Farm Transparency at [37]. Thus, any law that imposes a prohibition on political communication can only incrementally burden the implied freedom in so far as it extends beyond existing prohibitions. The High Court has consistently denied that the implied freedom, as a limitation on legislative power, prevents a Parliament from regulating political communications (including public assemblies) that a person is not free to make. As stated by Edelman J in Clubb (at [223]): “To recognise otherwise would transmogrify the constitutional protection of a freedom into a constitutional right.”

39. An incremental burden must be justified: Farm Transparency at [37] (Kiefel CJ and Keane J). ^[15] The burden will plainly be substantial and direct if the prohibition on conduct introduced by the impugned laws is not constrained by any existing law.

40. Secondly, a closer examination of the above passage from the Second Reading Speech suggest that the Attorney-General may not have necessarily contemplated that there would remain, after the passage of the Bill, the maintenance of what he described as “the rights of all individuals to participate in lawful protest” (or at least a full maintenance of such a right). Rather, he seems to suggest that public assemblies, protests, and demonstrations may be accommodated by the Commissioner of Police not raising objection to such activists under Pt 4 of the Summary Offences Act, ^[16] or protests being effected by means of other public assemblies.

41. The Attorney-General referred to there being “plenty of ways that the Bill leaves for people to engage in peaceful assembly and the peaceful right of protest” and that it is “really not a matter of criminalising matters that are already unlawful.” The focus was upon the protection of major facilities from “damage or serious disruptions.”

42. In any event, the operation of the law needs to be evaluated upon the basis of the terms of the legislative provision itself, when properly construed. That assessment can await further discussion, but, in my view, the provisions of s 214A have a reach to public assemblies, protests and demonstrations which are lawful under existing laws.

43. In those respects, I note that a central issue in these proceedings is whether s 214A effectively burdens the implied freedom.

44. The plaintiffs’ case was that s 214A effects a significant burden on the constitutionally guaranteed freedom of political communication, in the present matter with respect to protests or public assemblies in which environmental issues about government and politics are agitated: see Clubb at [4] (Kiefel CJ, Bell and Keane JJ).

45. The State contended that s 214A(1) did not effectively burden the implied freedom because the conduct it proscribes was otherwise unlawful. Alternatively, if the Court were to find an incremental burden, then the State would accept there was a burden, but it was inconsequential.

EVIDENCE

Admission of the evidence

46. The parties relied upon affidavit evidence in their respective cases together with documentary material.

47. Subject to issues foreshadowed as potentially arising as to the admission of some parts of that evidence, there was tendered (without objection), a Court Book (marked Exhibit 1 in the proceedings) (the contentious material was also contained within the Court Book). There was also tendered a map of Town Hall Station (Exhibit 2).

48. The affidavit evidence in the plaintiff’s case was as follows:

1. Affidavit of Helen Laura Kvelde affirmed 24 October 2022 (“First Kvelde affidavit”);

2. The Affidavit of Ms Kvelde affirmed 10 March 2023 (“Second Kvelde affidavit”);

3. Affidavit of Dominque Anne Jacobs, affirmed 22 October 2022 (“First Jacobs affidavit”);

4. Affidavit of Ms Jacobs affirmed 10 March 2023 (“Second Jacobs affidavit”).

49. The plaintiffs also relied on documentary material in the form of newspaper articles featuring a discussion of various protests together with an extract from a book written by Paul Strangio entitled “Keeper of the Faith: a biography of Jim Cairns” (collectively “the plaintiffs documentary material”). ^[17]

50. The State relied upon two affidavits:

1. Affidavit of Gary Bevan, sworn on 6 February 2023;

2. Affidavit of Courtney Lauren Raad, affirmed on 6 February 2023.

51. At the time of affirming her affidavit, Ms Raad had before her a bundle of documents marked CR-1. These documents formed part of Exhibit 1. Also before Ms Raad at the time of affirming her affidavit was a USB marked Exhibit CR-2. The State produced an aide-memoire summarising the content of Exhibit CR-2 (which also formed part of Exhibit 1).

52. Upon the tendering of the plaintiff’s evidence, Mr M Sexton, SC who appeared for the State with Mr M Pulsford of counsel, initially submitted that it may be that “there would be no relevant evidence that would be required in this kind of case”. He further submitted that the plaintiff’s affidavits and documentary evidence were not relevant, except perhaps as to the question of standing. (Mr Sexton SC confirmed, however, that the State contested the standing of the plaintiffs). Mr Sexton SC accepted that there would be difficulties in ruling on questions of relevance in a constitutional case and “all of the materials should go in, subject to relevance.”

53. The disposition of this question was left on the following basis, as articulated by the Court and agreed to by the parties:

“The material would come in without any desire for cross examination on the material…there may or may not be questions of relevance. To the extent there is questions of relevance then counsel can identify that in their submissions, to the extent they may wish to raise it. I will treat the material then, to the extent that it’s raised in that fashion, as provisionally relevant subject to my ultimate judgment in the matter.”

54. The Court then emphasised the need for counsel to state their position with respect to the “factual material very clearly and [the] finding that they seek with respect to [the material] very clearly.”

55. During the course of the final submissions, no submission was advanced by counsel appearing for either party in the proceedings raising an issue of admissibility of the evidence, including questions of relevance. Hence, no issue arises for the Court to determine in that respect. However, given the way in which this issue was developed, I will briefly consider the relevance of and weight to be given to the documentary evidence of the plaintiffs.

56. In my view, the documentary evidence of the plaintiffs is relevant to the question of burden together with forming part of the factual background. The affidavit evidence of the plaintiffs is primarily directed to standing but is also relevant, as I will discuss, to burden. I reject the State’s contention that the consideration of such material with respect to the question of validity “[distorted] possibilities” for reasons developed below. No different conclusion should be reached with respect to the State’s (counterpart) evidence.

57. The documentary material led by the plaintiffs was primarily concerned with the significance of political communications being burdened by law. Thus, the various newspaper articles tendered were said to constitute evidence of various major historical protest activities, particularly situated at or near Sydney Town Hall. It is important to emphasise that that which is prescribed as a major facility is not Sydney Town Hall but Town Hall Railway Station. However, whilst protests vary in size, protests around Sydney Town Hall can have the real potential of causing impediments to using entrances to Town Hall Railway Station and consequently, persons being redirected. That would seem to be the actual experience of large protests at Sydney Town Hall.

58. In this respect, the newspaper articles concerned major protests against the Vietnam war, gender inequality, Aboriginal deaths in custody, legislation affecting the LGBTIQA community and the celebration of 26 January. Essentially, this evidence was led to demonstrate that, given the number of participants in the protest, the protest would be apt to involve protesters remaining near Town Hall Station (that is, in the Town Hall precincts), causing, inter alia, train goers to be redirected at least to another station entrance. ^[18]

59. These large rallies stand, to some extent, in contrast with the evidence of protest activities by Ms Kvelde and Ms Jacobs as summarised below. Nonetheless, one common factor was the attractiveness of conducting protests at such locations.

60. I have drawn attention to the plaintiffs’ documentary material in this way, notwithstanding, at the end of the day, no apparent objection was taken to it because of the nature of the material; being primarily newspaper articles. It is no doubt for this reason that the plaintiffs’ submitted that the Court would, in any event, take judicial notice of the long history of political activities of the kind described in the newspaper articles in Australia (centred around Sydney Town Hall). I agree with the plaintiffs’ submission to that effect and in doing so cast doubt upon the proposition advanced by the State that the consideration of such material, confined as it is to Town Hall Station, would distort possibilities, particularly taking into account the plaintiffs’ evidence that such locations are frequently used for protests, given their proximity to public transport and their high visibility to the public. ^[19]

61. A constitutional fact is “… information which the Court should have in order to judge properly the validity of this or that statute or of this and that application by the Executive Government of State or Commonwealth of some power or authority that it asserts”: Breen v Sneddon (1961) 106 CLR 406 at 411 (Dixon CJ).

62. A distinction was drawn between such facts and other facts in Gerhardy v Brown (1985) 159 CLR 70 by Brennan J as follows (at 141-143):

“There is a distinction between a judicial finding of fact in issue between the parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a Court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants…

The Court may, of course, invite and receive assistance from the parties to ascertain the statutory facts, but it is free also to inform itself from other sources… the Court must ascertain the statutory facts “as best it can” and it is difficult and undesirable to impose a priori restraint on the performance of that duty.”

63. More recently, Gageler J (as his Honour then was) stated in Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 (“Maloney”) at [351]:

[351]…“A court finding constitutional facts is not constrained by the rules of evidence. The Court “reaches the necessary conclusion of fact largely on the basis of its knowledge of the society of which it is part”, supplementing… that knowledge [by processes] which [do] not readily lend [themselves] to the normal procedures for the reception of evidence.” ^[20]

64. Plainly, the Court’s power to enquire into constitutional facts is not unlimited and, in that respect, attention is often directed to the authoritativeness, persuasiveness or public nature of the material: Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63; [2003] FCAFC 237 at [49] (Branson, Hely and Selway JJ). ^[21] I would note, however, in Maloney, Gageler J (as his Honour then was) stated (at [353]):

[353] The sources may, but need not, be ‘official’. It is desirable, but not inevitable that they be ‘public or authoritative’. They can include inferences… drawn from the regulations and statutes themselves ‘and statements made at the bar’.

65. On the basis of these authorities, I consider the Court may have regard to the newspaper articles (and the extract from a book), relied upon by the plaintiffs, as a representation of that which is otherwise known by the Court (as well as popularly known) with respect to significant historical protests, to conclude that the Sydney Town Hall has been a popular site for protest and that historically those protests have been of large scale. As I have mentioned, this conclusion is buttressed by Ms Kvelde’s and Ms Jacob’s evidence as to the desirability of the use of such locations for protest.

66. I agree with the submission of Mr S Free SC with whom Mr F Graham, Ms E Jones and Mr D Farinha of counsel, appeared for the plaintiffs, that it may be inferred, given the size of the protests (as depicted in the photography and narrative in the newspaper articles, Exhibit 2) and by taking judicial notice, that protests of that character have typically occurred near Town Hall Railway Station (“Town Hall Station”) at large scale. It is quite likely that train commuters or other persons using the underground surrounds of the Railway Station would need to be redirected to enter or exit the railway station via passageways situated geographically away from the protesters (see Exhibit 2). This would most likely be away from their routine or intended points of ingress or egress. I accept that some large protests may deter any use of the Railway Station or substantially impede points of access to and egress from it for the duration of the protest and that in some cases these actions may have constituted a serious disruption or obstruction for the purpose of subs (1)(b) or closure (for the purposes of subs (1)(c) as opposed to being redirected (a distinction I will later discuss).

67. Given the conduct of the proceedings, no issues as to procedural fairness can properly arise in the present matter. ^[22] I note that the Court received in evidence a map of Town Hall Station and that the parties made submissions using the Town Hall Station for purposes of illustration. Further, as mentioned, Ms Kvelde’s evidence directly concerned a protest near Town Hall Station.

The Affidavit Evidence

Ms Helen Kvelde

68. Ms Kvelde is 71 years old and lives in Wingham. ^[23] She participated in a few protests between 1969-70 against the Vietnam War and then in the early 1990s against the Gulf War. ^[24] In 2018, she joined and became a member of the “Mid Coast Nannas.” ^[25] That group is part of the “Knitting Nannas”, whose members agree and adhere to “The Nannafesto”. ^[26] The Nannafesto relevantly states the following:

“We peacefully and productively protest against the destruction of our land, air, and water by corporations and/or individuals who seek profit and personal gain from the short-sighted and greedy plunder of our natural resources. We support energy generation from renewable sources, and sustainable use of our other natural resources. We sit, knit, plot, have a yarn and a cuppa, and bear witness to the war against those who try to rape our land and divide our communities.

…

The Knitting Nannas aims are to bring attention to the issues surrounding unsustainable resource exploitation; to show the people, the media, the politicians and the exploiters just how far from radical the “extremists” who oppose their practices are; to entertain and inform the public, and bring new supporters to the movement. We aim to make protests and blockades safe, to support people assert their right to protest assertively and without personal and physical danger. We want to make sure that our servants, the politicians, represent our democratic wishes and know they are accountable – to us. We are very happy to remind them of this – often. We represent many who cannot make it out to protests – the elderly, the ill, the infirm, people with young children and workers.

…”

69. As a member of the Mid Coast Nannas, Ms Kvelde would meet with other members on a regular basis. When she joined, they were meeting once a month outside politician’s offices or the IGA supermarket in Taree. ^[27] From about 2018, they began to meet weekly to sit outside the office of their local Member of Parliament. ^[28]

70. In addition to being a member of the Mid Coast Nannas, Ms Kvelde is also a member of Mid Coast Extinction Rebellion, No Electricity from Forests and the North East Forest Alliance. ^[29] She has participated in protest actions with those groups and undertaken non-violent direct action training with Extinction Rebellion. ^[30]

71. Ms Kvelde’s affidavit details a number of protest actions that she has participated in. It is clear that she has a history of, not just attending and observing, but participating in protests. The extent of her involvement ranges from marching on roads and footpaths, ^[31] to waving flags and banners, ^[32] to stopping traffic in the middle of the road and putting her body in harm’s way. ^[33] It is not necessary to set out every single example. The salient features of her evidence are set out in what follows.

72. Ms Kvelde has protested at or within close proximity to public transport hubs, including train stations and ferry wharves. For example, in or about December 2020, Ms Kvelde joined an Extinction Rebellion demonstration at Central Station where the country trains depart. ^[34] The people there dressed up in bird and animal costumes to represent species going extinct. Another example was on 17 October 2020 when Ms Kvelde and about 20 other people dressed up in Hawaiian shirts and wore masks depicting the then Prime Minister, Scott Morrison, at Circular Quay where the Manly Ferry departs.

73. Based on her experience, Ms Kvelde explained that protest actions occur in or around the Sydney CBD and within close proximity to transport hubs, such as Central Station and Circular Quay ferry wharves, because of accessibility and ease of access for older and incapacitated people to attend, the visibility to the community by being in a location with lots of passers-by, and public transport locations attracting a cross-section of the public. ^[35]

74. According to Ms Kvelde, the locations of protests is of importance to the message that she is seeking to convey. On 10 June 2021 and 23 March 2022, she participated in protests at Port Botany. She reasoned that, although the location does not attract many passers-by, “it is a location directly involved in the importation of fuel into the country which is significant to me as a protest location” ^[36] and that “as a location [Port Botany] was symbolic of the message about the impact of fossil fuels on the climate and a location that represents the capitalist greed in the system as a place of imports and exports”. ^[37]

75. She also explained that dressing up in costumes, including on one occasion as bees and beekeepers and handing out honey was to draw attention to the loss of bees ^[38] and attracted attention from passers-by. ^[39]

76. Ms Kvelde has participated in protest actions that involve disrupting or blocking traffic. As part of the “Spring Rebellion” on 7 October 2019 to “draw attention to the climate and species extinction emergencies,” ^[40] Ms Kvelde crossed Elizabeth Street in Sydney CBD at the traffic light and, with two other people, laid down in the middle of the road. She said, “To me, there is something symbolic about putting your body in harm’s way as a mechanism to draw attention to the climate crisis.” ^[41] She then moved to Town Hall Station. I will return to that evidence.

77. Ms Kvelde’s actions of protesting on roads have had the effect of disrupting traffic. For example, as part of the “Spring Rebellion” in October 2020, Ms Kvelde and two others blocked the end of Macquarie Street by setting up a bed at Parliament House. She explained that the purpose of this protest was “to represent the message that the government should ‘get out of bed’ with the fossil fuel industry.” ^[42] Macquarie Street was blocked for about 15 minutes and vehicles turned around to take other routes through the city. ^[43]

78. Ms Kvelde claims that “the majority of [her protest] actions were directed at community education and engagement not disruption.” ^[44] In relation to why she has been engaged in protest actions, Ms Kvelde said:

“I am terrified, angry, and grief-stricken about the climate emergency and ongoing and increasing extinction of species. I feel it is my responsibility to act out of a sense of duty to all the young people. One of the reasons that I attend as many actions as I have done in the past is that I believe exposure and the sheer number of persons standing up for what they believe in is an effective means of bringing the climate crisis to the forefront of our government and community consciousness.” ^[45]

79. Ms Kvelde believes that the impugned provisions “contribute to, and exacerbate, the apprehension and fear [that she] feel[s] about attending protests, especially given the real possibility of gaol time.” ^[46]

80. Her evidence is that she has been charged in relation to her protest actions at Port Botany ^[47] and was placed on bail. ^[48] One of her bail conditions was “not to protest at any public location unless the protest was lawful.” ^[49] In June 2022, Blockade Australia were organising a series of events in Sydney CBD. Ms Kvelde said that she wanted to “just turn up on the day” but the impugned provisions made her “afraid that [she] could be arrested for attending if the action happened to be near a major facility … and cause disruption. I therefore chose not to attend.” ^[50] Ms Kvelde stated:

“Not attending this protest action caused me to have mixed emotions – I was disappointed in myself for not attending; I was scared and fearful of arrest if I did attend; and I was frustrated that I felt like I could not go out and connect with like-minded people and raise awareness regarding the climate crisis.” ^[51]

81. Ms Kvelde stated that that “[d]ue mostly to the new anti-protest law and the risk of being charged with an offence that carries a prison sentence of up to 2 years,” her attendance and participation in protest actions “has not been as active as what it was prior to the introduction of those laws.” ^[52] Specifically, there was an upcoming action through Rising Tide in Newcastle that she assumed may include an action in the Port of Newcastle but she had no plans to attend because of the impugned laws. ^[53]

Ms Dominique Jacobs

82. Ms Jacobs is 58 years old, lives in Gloucester and works as a part-time educator at a local preschool. ^[54] She is also an English teacher to Afghan students online. She has obtained a Certificate III in Conservation and Land Management and a Bush Regeneration Statement of Attainment through TAFE NSW. Around 2014, Ms Jacobs joined the Knitting Nannas.

83. Ms Jacobs became involved in protesting against AGL’s coal seam gas exploration in Gloucester, ^[55] the place where she has lived for 30 years. ^[56] Her involvement could be described as extensive. She was part of a roster that helped out three times a week at the rotunda (which was a public rest stop about 3-4 kilometres from the turn off to where the AGL project site was located and where project employees were housed). ^[57] She organised a protest walk as a “visual objection” to demonstrate their opposition to the erection of “No Stopping” signs along the road to the project site and to the AGL project more broadly. ^[58]

84. From approximately 1 October 2014, Ms Jacobs and her husband, Mr Brett Jacobs, went to the AGL project site daily and, along with other protesters, sat or stood in front of the gate with signs. The police would attend before buses of site employees would attend with police escort. Ms Jacobs explained:

“To me, being at the gate was a direct message to AGL that people didn’t want them here. This was a way to be visible and tell AGL that people were not happy with the AGL Project and, on occasion, being at the gate also had the effect of disrupting AGL’s work as another way of making our opposition felt.” ^[59]

85. Between October 2014 and January 2016, Ms Jacobs and others participated in “No Stopping Gloucester” walks to and around the gate of the AGL project, through Gloucester and surrounding suburbs. ^[60] On one of those occasions, on 29 November 2014, about 100 people from the walk entered the AGL project site and the police became involved. ^[61] Ms Jacobs also helped organise “Walk the catchment” walks in Foster, Taree and Wingham, and she promoted the walks on Facebook. ^[62]

86. Ms Jacobs has been involved in other protest actions, which have involved obstructing traffic, entering private facilities and chaining a part of her body to gates. For example, on 18 January 2016, Ms Jacobs was protesting in opposition to Santos’ coal seam gas exploration in the Piliga and was arrested and charged with obstructing traffic and refusing to obey a police direction in relation to locking herself to the gates of Santos’ Leewood facility with a bike lock. ^[63] She pleaded guilty but no conviction was recorded. ^[64] On a separate occasion, on 21 February 2016, Ms Jacobs and approximately 30 other people did a “walk on” to Santos’ Leewood site, entering through a hole in the fence. ^[65] They sat in a circle for approximately one hour and the police allowed them to leave without charges.

87. Ms Jacobs’ protest actions have extended to public transport facilities in Sydney CBD. She noted that Martin Place Railway Station was commonly used for Knitting Nannas protest activities. ^[66] She said that the location is easily accessible for older people with mobility issues and for people coming from out of Sydney and offers excellent visibility. On about 23 June 2016 and 18 March 2019, Ms Jacobs and the Knitting Nannas were protesting around the entrance of Martin Place Station. ^[67] Their group blocked the entrance to the station, not completely blocking access, but so much so that people had to walk around the group. Martin Place Station is situated close to Parliament House, where, in 2016, Ms Jacobs symbolically locked on with “chains” that she and others had knitted to the fence of Parliament House for the “world’s biggest lock on”. ^[68]

88. Ms Jacobs’ protest activities have included protesting within close proximity to railway stations. For example, on 6 October 2019, she took part in an Extinction Rebellion action that began from Belmore Park, which is adjacent to Central Station. ^[69] After marching, she and others sat down to occupy the intersection of George Street, Pitt Street, Quay Street, Lee Street and Broadway. I take on judicial notice that these are busy streets, even on a Sunday, and are located in Sydney CBD within close proximity to Central Station. After the police attended and warned people that they would be arrested if they did not move on, Ms Jacobs moved on as requested. ^[70] Ms Jacobs explained that the purpose of this action “was to peacefully occupy the centres of power and raise awareness about our climate and ecological emergency.” ^[71]

89. Ms Jacobs stated that she “intend[s] to protest the inaction of our leaders to make the necessary changes to our current system to avert complete disaster.” ^[72] She stated:

“Non-violent direct action, in my experience, is what gets attention – the media’s, the community’s and the Government’s. Protesting at central locations, which in my experience are often near train stations, like Martin Place, provide an accessible means to allow persons, such as myself, to come and express their views about the climate crisis. Locations that are known, easy to get to by being close to transport and proximate to big populations are therefore an important aspect to me of protest action. … Going forward, the [impugned laws] will have a big impact on me – I don’t think I would risk the possibility of arrest for simply being near the Martin Place train station as part of an action with the Nannas to engage with the community.

I have a family, including a new grandchild. I care for native animals. The idea of two years’ imprisonment really does frighten me, and it does weigh on my mind. The new laws have made me more apprehensive about participating in protest action in the future.” ^[73]

90. Ms Jacobs emphasised that, from her experience, there is generally a lot of uncertainty in advance about protest actions including the exact location, expected number of persons or routes that will be taken. ^[74] Ms Jacobs is “scared that [she] could be arrested for simply attending an action that is near a major facility such as a train station.” ^[75] She says that “[t]his is not something [she] would necessarily know in advance”. ^[76]

91. Like Ms Kvelde, Ms Jacobs chose not to attend protest actions organised by Blockade Australia in Sydney CBD in June 2022 because of “my exposure to possible arrest if the action was to occur near a major facility.” ^[77]

92. Like Ms Kvelde, she was aware of the Rising Tide event in Newcastle but did not intend to attend because there was a risk of arrest. ^[78] She was “really devastated” by this.

Mr Gary Beavan

93. Mr Beavan is the Director, Infrastructure Protection & Resilience at the Greater Sydney Region of TfNSW. ^[79] In this role, he is responsible for the protection and resilience of key infrastructure assets such as the Sydney Harbour and Anzac Bridges, coordinating the implementation of legislative requirements for critical infrastructure assets and coordinating security operations for events affecting the road and public transport network in the Greater Sydney metropolitan region. ^[80] He previously worked as a police officer in the NSW Police Force and in security management roles within Rail Corporation New South Wales and the Sydney Trains Division of TfNSW. ^[81]

94. Mr Beavan’s affidavit included an intelligence report by the TfNSW Security Crisis and Emergency Management Branch dated 31 March 2022. The report noted that TfNSW assets were high value targets for political protests. It noted that, whilst some elements of the transport network are well protected (such as the Sydney Harbour Bridge), “large parts of the network only have a basic level of protection.” ^[82] Places of current well-known disruptions include the Spit Bridge and Port Botany. It was noted that disruptions could possibly occur at:

• Port Botany at port entrances and the freight only rail corridor;

• The Spit Bridge;

• The Sydney Harbour Bridge and Anzac Bridge, including scaling and banner unfurling (noting that “[t]he attractiveness of these sites for generating media imagery is self-evident”);

• The Rail corridor between Chillcotts Creek and Ardglen, including coal train disruptions; and

• The Rail corridor in the Newcastle area, particularly given heavy coal rail traffic to Kooragang Island and Port Waratah coal loaders.

95. The report stated that groups such as Blockade Australia, Extinction Rebellion and Rising Tide were “known to target the Transport network.” It also noted “ongoing advice from [the Australian Security Intelligence Organisation] about the attractiveness of the Land Freight sector to protests in general.” ^[83]

96. Mr Beavan’s affidavit also annexed records of two transport incidents at the Spit Bridge by Fireproof Australia protesters on 22 February and 14 March 2022 (“Annexure B”). The details, per Annexure B, were as follows:

1. On 22 February 2022, shortly after 8am, four protesters sat on the city-bound lanes of the Spit Bridge. The conduct of the protesters caused traffic to be “at a standstill [in] both directions.” ^[84] The traffic congestion continued even after the protesters were removed from the road sometime around 8.23am; city-bound queues were 3 kilometres long at 8.42am. ^[85] On 14 March 2022, shortly after 8.30am, protesters again blocked all city bound lanes. ^[86] The protesters were removed from the road sometime around 8.50am. ^[87] The protest caused heavy traffic.

2. One of those incidents occurred on 24 March 2023. A male protester, who identified as part of Blockade Australia and was protesting about climate change, suspended himself from the Banksia Street Overbridge in Pagewood and chained himself to a pole inside the rail corridor adjacent to 46 Ocean Street, Pagewood. ^[88] It was recorded that 8-10 other protesters were seen in the rail corridor but were not located by police. As a result of this action and the consequential police operation, a freight train was delayed by two hours.

3. Several incidents occurred on 25 March 2023. In the morning, from around 10:36am to 11:16am, a freight train was “at a stand” due to protesters in the rail corridor near Meeks Road around Marrickville throwing ladders to try and climb on it. ^[89] Police were able to enter the rail corridor after receiving confirmation that trains had stopped. Inner West and St George Police were recorded as having attended. Both freight and passenger trains were halted until police advised that the corridor was clear.

4. In the afternoon, from around 2:41pm, an individual protester was suspended from a crane in or adjacent to the Patrick Terminals near Port Botany. ^[90] As a result, the Australian Rail Track Corporation advised freight rail services to move slowly in the area and the police placed all freight services on warning. It was advised that nine police crews were on scene, police negotiators were dispatched and, as of 8:14pm that day, the area was not deemed to be clear.

5. In total, Blockade Australia protesters were involved in nine actions at Port Botany, between 22 March and 26 March 2022. As is represented (largely) by the image in Mr Beavan’s affidavit at page ten, Port Botany was blocked by:

1. On 22 March 2022, a protester climbing a bamboo tensegrity structure erected on a road entering the Port;

2. On 22 March 2022, a protester climbing a 9-metre monopole erected on a road entering the Port;

3. On 23 March 2022, a protester climbing a bipod structure erected on a road entering the Port;

4. On 23 March 2022, protesters parking two trucks across all lanes of traffic on a road entering the Port;

5. On 24 March 2022, a protester climbing a 9-metre monopole erected on the freight rail line;

6. On 25 March 2022, a protester climbing a bipod structure on the freight rail line;

7. On 25 March 2022, a protester climbing onto the roof of a cargo train on the freight rail line;

8. As aforementioned, on 25 March 2022, a protester breaking into the Port (“by scaling multiple barbed-wire fences”), scaling a 60-metre crane and abseiling from its main arm;

9. On 26 March 2022, a protester abseiling off Port Botany Bridge to hang over the rail line into the Port.

Ms Courtney Raad

97. Ms Raad is a solicitor employed in the NSW Crown Solicitor’s Office. Her affidavit exhibited a number of documents or printouts of webpages from publicly available sources. There was also exhibited a USB containing 21 video files from posts made by Blockade Australia on Twitter and an aide-memoire briefly describing the videos. Those videos include livestreams made by an individual protester including in February and March 2022. Some of these livestreams correspond to records of incidents on railway corridors that were annexed to the affidavit of Mr Beaven. The livestreams and other videos depict individuals climbing a crane at Port Botany, abseiling from a crane at Port Botany, sitting on top of a cargo train at Port Botany, suspended from a structure connected to a rail bridge at Port Botany and suspended from a bridge over freight rail lines at Port Botany. All of this material was admitted as part of Exhibit 1.

STANDING

98. The State challenged the standing of the plaintiffs to seek declaratory relief. As mentioned, it is necessary to resolve the issue of standing before proceeding to the merits, because whether the plaintiffs have standing to seek the relief goes to the jurisdiction of the Court and it is the “first duty” of any Court to be satisfied as to its own jurisdiction: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 (Griffiths CJ). It is also a convenient course to take because the parties structured their written arguments by first dealing with the issue of standing.

Plaintiffs’ Submissions and Evidence

99. The plaintiffs submitted that the test for standing is whether they have a “real” or “sufficient” interest in obtaining the relief sought. In the context of seeking a declaration of constitutional invalidity, a plaintiff may have a “real” or “sufficient” interest where “their freedom of action is particularly affected by the impugned law”, citing Unions New South Wales v New South Wales (2023) 407 ALJR 277; [2023] HCA 4 at [22] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ) (“Unions NSW 2023”). Reliance was made on the speech of Lord Upjohn in Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 at 433 that:

“A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to the right of the court in exercise of its judicial discretion to refuse relief in the circumstances of the case.”

100. The salient features of the plaintiffs’ evidence are as follows. The plaintiffs both have a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports. Counsel for the plaintiffs submitted that their past conduct could well have contravened the impugned provisions had they been in force at the time.

101. The plaintiffs’ evidence was that they desired and intended to continue to engage in these protest activities but were concerned about the possibility of being charged with an offence under the impugned provisions. Their evidence was that they had made decisions to avoid certain conduct that they believed would be prohibited by the impugned provisions, which, had the impugned provisions not existed, they had wanted to do.

The State’s Submissions

102. The State submitted that federal jurisdiction can only be exercised in respect of a “matter” and that there can be no “matter” “unless there is some immediate right, duty or liability to be established”, citing Re Judiciary and Navigation Acts (1921) 29 CLR 257; [1921] HCA 20 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Stake JJ) (“Re Judiciary and Navigation Acts”). The State emphasised that this requirement ensures that the Court is not giving an advisory opinion divorced from a controversy or answering academic or hypothetical questions.

103. The State contended that the plaintiffs’ evidence did not demonstrate that they intended to engage in conduct which the impugned provisions proscribes and that they had only stated a “desire and intention” to engage in protest actions that were not captured by the impugned provisions.

104. As earlier mentioned, the State submitted that the plaintiffs had not established that s 214A of the Crimes Act burdened their freedom of action as that law did not impose any new prohibition or restriction on any person and only added to the adverse consequences of contravention of existing norms.

105. The State also distinguished the conduct of the plaintiffs in this case from the plaintiff in Unions NSW 2023 on the basis that the latter had engaged in positive conduct to comply with new electoral funding laws whilst the modification of behaviour of the plaintiffs in the instant case had been to not attend certain protests.

Consideration: Standing

106. The plaintiffs, in moving the Court to declare that s 214A of the Crimes Act infringes the freedom of political communication implied from the Constitution, sought that this Court administer not s 214A but the Constitution which determines its validity or invalidity. Therefore, the plaintiffs seek to invoke federal jurisdiction, pursuant to s 76(i) of the Constitution, in “any matter … arising under this Constitution, or involving its interpretation.” That jurisdiction may be exercised by this Court under s 39(2) of the Judiciary Act 1903 (Cth) (which is a law envisaged by s 77(iii) of the Constitution).

107. The High Court’s decision in Re Judiciary and Navigation Acts makes clear that Courts are not free to make any declaration at large, whenever they wish but there must be a “matter” before the Court. The question as to whether there is a matter grounding federal jurisdiction to entertain a claim for relief is linked to the question of standing to claim that relief. As Gummow, Crennan and Bell JJ observed in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 at [152]:

“[152]   It is now well established that in federal jurisdiction, questions of ‘standing’ to seek equitable remedies such as those of declaration and injunction are subsumed within the constitutional requirement of a ‘matter’.”

108. Justice Mason explained in Robinson v Western Australia (1977) 138 CLR 283 at 327 that the requirement as to standing to invoke the exercise of judicial power “reflects a natural reluctance on the part of the Courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions.” Thus, it is a necessary requirement for the plaintiffs, in their challenge to s 214A of the Crimes Act, to show that they have standing to seek declaratory relief.

109. Although the challenge to cl 48A(1) of the Roads Regulation does not concern the exercise of federal judicial power (it not being based on any constitutional or Commonwealth law but rather a State law), the plaintiffs must nonetheless also demonstrate they have standing to seek that relief.

110. I begin by considering the law of standing and the relevant High Court authorities.

111. In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 (“ACF”), the High Court abandoned the previous formulation that required an applicant for declaratory or injunctive relief to show “special damage peculiar to himself from the interference with the [asserted] public right”: Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114. The High Court in ACF laid down a new test: all applicants for declaratory relief, perhaps except the Attorney-General, must show they have a “special interest” in the subject matter of the action. At pages 530-531, Gibbs CJ stated:

“I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”

112. The dispute in ACF concerned a challenge by the Australian Conservation Foundation (“the Foundation”) to the validity of a decision allegedly made by the Commonwealth to approve of a proposal to establish and operate a resort and tourist area at Farnborough in central Queensland or, alternatively, to approve exchange control transactions in relation to that proposal. Applying the “special interest” test, a majority of the Court held that the Foundation did not have standing. This was so notwithstanding that the Foundation held strong ideological beliefs that were reflected in its objects and the fact that the Foundation had sent written comments when the draft environmental impact statement was made available for public comment.

113. ACF establishes that the mere fact that a person has strong ideological beliefs about an issue that has been the subject of a decision of the Executive does not suffice to establish standing. Something more is necessary.

114. In Unions NSW 2023, the plaintiffs sought declarations in the High Court that ss 29(11) and 35 of the Electoral Funding Act 2018 (NSW) were invalid. Two weeks before the Full Court heard the proceedings, the Parliament of New South Wales repealed s 35. The plaintiffs sought to amend their Statement of Claim to seek a declaration that s 35, as it stood from 1 July 2018 to 2 November 2022, was invalid. The Court unanimously held it did not have jurisdiction to hear and determine the appeal as a result of the repeal because a sufficient interest must continue to subsist until the time at which relief is granted or refused (at [18] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ), [44] (Edelman J agreeing), [94] (Steward J agreeing)).

115. In giving their reasons, Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ set out the law of standing in relation to declaratory relief of the invalidity of legislation as follows:

“[16]   … Where, as here, the relief sought is declaratory of the invalidity of legislation, standing has traditionally been explained in terms of a requirement for the party seeking the relief to have a “real” or “sufficient” interest in obtaining the relief. That requirement is closely aligned with the requirement that, for the making of a declaration to constitute an exercise of judicial power, the declaration must be seen at the time of its making to produce foreseeable consequences for the parties.

…

[21]   A plaintiff will have and maintain a real or sufficient interest in obtaining relief if and for so long as they seek a declaration of their own rights, legal interests or liabilities, or if and for so long as the declaration sought will directly affect their rights, legal interests or liabilities. Generally, such a declaration will have foreseeable consequences for the plaintiff because they will be able to legally enforce those rights, interests or liabilities. So, for example, a declaration of invalidity of a law (even where the law has been repealed or amended) may have foreseeable consequences for that plaintiff where such a declaration assists to negative a statutory defence to a common law cause of action such as an intentional tort, or where the plaintiff is being prosecuted for breach of that law. The past infringement of certain personal rights or interests of a plaintiff, such as reputation and liberty, may also be sufficient for seeking declaratory relief even where there are no other asserted legal consequences.

[22]    But when a plaintiff seeks a declaration not of personal rights or liabilities — for example, a declaration of invalidity of a law for breach of the implied freedom of political communication, which is not a personal right — a plaintiff must establish an interest other than that which any other ordinary member of the public has in upholding the law generally. A person is not sufficiently interested “unless [they are] likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if [their] action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if [their] action fails”. The test for a sufficient interest is broad and flexible, varying according to the nature and subject matter of the litigation. However, whether a plaintiff’s interest is sufficient is a question of degree, not a question of discretion. The plaintiff must show that “success in the action would confer on [them] … a benefit or advantage greater than [that] conferred upon the ordinary member of the community; or … relieve [them] of a detriment or disadvantage to which [they] would otherwise have been subject … to an extent greater than the ordinary member of the community”. They must have more than a mere intellectual or emotional concern, and more than a belief, however strongly held, that the law or the Constitution should be upheld. As Croome demonstrates, a plaintiff may have a sufficient interest where their freedom of action is particularly affected by the impugned law. Other cases, such as Onus, demonstrate that the breadth of the categories of interest include economic, cultural and environmental interests.”

116. Their Honours cited approvingly the decision of Croome v State of Tasmania (1997) 191 CLR 119 (“Croome”). In Croome, the plaintiffs were male persons who alleged that they had sexual intercourse with each other and intended to have sexual intercourse with other male persons. Sections 122 and 123 of the Criminal Code (Tas) had prohibited sexual intercourse between male persons and acts of gross indecency committed by a male with another male. The plaintiffs challenged these two sections on the basis that they were inconsistent with s 4(1) of the Human Rights (Sexual Conduct) Act 1994 (Cth).

117. The first plaintiff, Mr Croome, stated in his affidavit that he is “obliged to live in a situation where there is a law in the statute book which criminalises my sexual relationships with my partners” and he lives in a “state of apprehension” and “am regarded as a criminal by the community” because he is a “professed homosexual and it is a matter of public record that I have broken the law and will continue to do so.”

118. The second plaintiff, Mr Toonen, gave evidence that he has lived “with the concern that he might be arrested by the police and prosecuted for his sexual activities”. He also noted that the residential tenancy agreement executed by him contained a condition that he not use the premises or permit them to be used for any illegal purposes. However, he said that he did not observe this provision.

119. It is noteworthy that the plaintiffs had not been charged with an offence under ss 122 or 123 of the Criminal Code (Tas). The Director of Public Prosecutions for Tasmania had also declined to prosecute the plaintiffs. Notwithstanding this, the High Court held that the plaintiffs had standing and there was a “matter” which the Court had jurisdiction to determine.

120. Brennan CJ, Dawson and Toohey JJ held, at 127, that the plaintiffs had a sufficient interest in the relief sought because the plaintiffs had “engaged in conduct which, if the impugned provisions of the Code were and are operative, render[ed] them liable to prosecution, conviction and punishment.”

121. Gaudron, McHugh and Gummow JJ accepted the standing of the plaintiffs on the basis that the impugned provisions “affect[ed] the plaintiffs in their person by imposing duties which require the observance of particular norms of conduct and attach liability to prosecution and subsequent punishment for disobedience.” Their Honours stated (at 138-139):

“Moreover, as we have sought to indicate, the plaintiffs have a “real interest” and do not seek to raise a question which is abstract or hypothetical. The State, by its Director of Public Prosecutions, has not prosecuted but, even if it were open for it to do so, it has not disabled itself from prosecuting hereafter. The DPP does not take the position that no offences have been committed nor the offences do not continue.”

122. In Brown, the plaintiffs challenged provisions creating an offence for protest activity around business premises and on forestry land. The charges against the plaintiffs had been withdrawn by the time of the hearing. Although the State of Tasmania conceded standing and it became unnecessary to determine the issue, Kiefel CJ, Bell and Keane JJ held, nonetheless, that:

“[17]   [T]he plaintiffs have a “real interest” in the question of the validity of the Protesters Act because, unless constrained by it, the plaintiffs intend to engage in conduct which it proscribes. They are therefore interested to know whether they are required to observe the law.”

123. Justice Edelman agreed, stating at [499] that:

“[499]   [T]here is, rightly, no dispute that each [plaintiff] has standing to challenge the validity of the Protesters Act. The plaintiffs are entitled to challenge the validity of laws which will govern their potential future conduct.”

124. In resolving questions of standing, it is important for the Court to keep in mind the underpinning purposes of the rules of standing. Aside from ensuring that there is a “matter” before a Ch III Court, one practical purpose of these rules is to improve the calibre of litigation. In Kuczborski v Queensland (2014) 254 CLR 51 at 109; [2014] HCA 46 at [186] (“Kuczborski”), Crennan, Kiefel, Gageler and Keane JJ stated that “adherence to established requirements as to standing is generally apt to improve the quality of judicial decision-making by ensuring that the focus and strength of arguments advanced by the parties reflect the importance of the prospective outcome for the parties.”

125. Their Honours were alluding to the fact that a party with a personal stake in the controversy would be more likely to gather and present evidence about the issue. For example, in determining whether the implied freedom of political communication has been infringed, evidence by a plaintiff as to how the law was practically applied can be relevant. This was clear in Brown where Kiefel CJ, Bell and Keane JJ noted that the “circumstances surrounding the arrest of Dr Brown are revealing” as to, amongst other things, the difficulty experienced by protesters and police officers “in determining where the line [demarking the area of forestry land] is to be drawn” (at [74]). The consequence of this practical difficulty in identifying the relevant area was that “some lawful protests will be prevented or discontinued and protesters will be determined from further protesting” (at [77]). This finding was relevant to the Court’s ultimate determination as to the constitutionality of the statute.

126. Therefore, the rules of standing should not be seen as a mere “judicial device operated to ration access to the courts.” ^[91] Rather, standing is an essential aspect to the proper functioning of the courts and the exercise of judicial power: see Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 304-5. The rules of standing are “designed to ensure that applicants only litigate their business” and “the Court will not recognise busybodies who interfere in things that do not concern them”: Hussein v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2006] FCA 286 at [46].

127. It is clear from the authorities that the mere fact that a person holds certain beliefs and wishes to translate them into action does not give standing. It has readily been accepted that “[a]ny person actually in jeopardy of punishment” under a challenged provision “will have standing to challenge their validity” (Kuczborski at [185]).

128. However, Croome and Brown make clear that a person does not lack standing to challenge the validity of an offence-creating provision merely because they have not been charged or convicted of an offence.

129. The plaintiffs in this case are in a similar position to the plaintiffs in Croome. Like in Croome, the plaintiffs here have engaged in conduct which, if the impugned provisions are valid, renders them liable to prosecution, conviction and punishment. As part of their protest actions, the plaintiffs here have blocked roads and gathered near major facilities like train stations and ports. Like the Croome plaintiffs, the plaintiffs here intend to continue such protest actions and remain passionate about their cause. It is clear from the affidavit material that, unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They are, therefore, interested to know whether they are required to observe the law.

130. The State contended that Croome is distinguishable because the plaintiffs stopped engaging in conduct contravening the impugned provisions once those provisions commenced, whilst the Croome plaintiffs were engaging in sexual intercourse with male persons when ss 122 and 123 of the Criminal Code (Tas) were enacted. This submission should not be accepted. The unchallenged evidence of the plaintiffs here is that the reason why they have chosen not to participate in certain protest actions is because they are afraid and scared of being arrested and imprisoned under the impugned provisions. Furthermore, the State’s submission is inconsistent with the observations of the plurality in Unions NSW 2023, where the plaintiffs had “modified their behaviour to comply with the law” (at [24]), that “persons should not be disadvantaged in seeking to challenge the validity of a law because of their compliance with the law” (at [26]).

131. In my view, both plaintiffs are in a different position to an ordinary member of the public. The plaintiffs not merely have just a strong political belief. They both have an extensive history in expressing their opinion through elaborate and coordinated protest actions about environmental and climate change issues. The plaintiffs are heavily invested in communicating their message to the public and have sought to do that through what they consider to be the most effective means, whether that be by protesting at places of symbolism or locations with high engagement with passers-by, dressing up as animals and politicians, disrupting traffic with symbolic items to further the communication of their message and the like.

132. Those protest actions regularly include blocking roads and causing inconvenience at major facilities and roads. They have regularly and proactively taken positive steps to communicate their beliefs and passions through protest, regular meetings with Knitting Nannas, travelling from regional towns to Sydney to attend coordinated protests with groups and put their bodies at risk to convey their message. They have a very strong desire to attend and participate in further protest actions about these issues but, because of the impugned laws, have decided not to attend and participate protest actions about these issues.

133. The culmination of these facts, when viewed in their totality, leads me to the conclusion that the plaintiffs have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions that they consider to be effective in spreading the message to the media, politicians and the public.

134. At the time of the June 2022 action organised by Blockade Australia, both plaintiffs were subject to bail conditions “not to protest at any public location unless the protest is lawful.” Ms Kvelde is currently subject to a conditional release order without conviction, in relation to her connection to the Port Botany action, which is expected to expire in December 2023. One of the conditions of that order is that she does not commit any offence. Clearly, the plaintiffs have an interest in knowing whether any potential protest activity would be lawful in order to comply with those bail conditions. In this sense, the situation that both plaintiffs find themselves in is analogous to the residential tenancy agreement conditions that applied to Mr Toonen in Croome.

135. Furthermore, the plaintiffs have a freedom of action that “is particularly affected by the impugned law”: Unions NSW 2023 at [22] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ). In Melbourne Corporation v Barry (1922) 31 CLR 174 (“Melbourne Corp v Barry”) at 197, Isaacs J (as the Chief Justice then was) recognised the “right innocently and unaggressively to use the King’s highway in company on occasions that frequently represent great and important national, political, social, religious or industrial movements or opinions.” This was recognised, as I will further discuss below, by Angel J in Watson v Trenerry (1998) 122 NTR 1 (“Trennery”) at 7-8 who stated that “peaceable protests are to be tolerated in the recognition of the freedom of others to hold different opinions, to speak, to assemble and to associate.” The plaintiffs’ freedom to protest has been especially affected by these laws in a real and practical sense.

136. The State’s contention that the impugned provisions do not expressly proscribe protest action is unpersuasive. The very conduct of the plaintiffs in protesting for issues that they hold dear near major facilities, bridges and roads are proscribed by the impugned provisions. As will be developed below, the impugned provisions are sufficiently broad to include the protest actions that the plaintiffs have previously engaged in and intend to engage in.

137. Having established that the plaintiffs’ freedom of action has been particularly affected by the impugned law, they can then “come to the court to have [their] rights and position clarified” subject to judicial discretion: Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 at 433 (Lord Upjohn).

138. Lastly, these plaintiffs are not mere busybodies. They are people who have attended, organised, promoted, and planned many protest actions. They bring to this Court insight about effective means of communicating their message and protesting. Their affidavits articulate clearly why certain locations are chosen, the symbolism around actions and locations, the ability to attract attention from the media and passers-by. The Second Jacobs Affidavit gave insight about the difficulty that Ms Jacobs experienced in knowing in advance, amongst other issues, what routes a planned protest action will involve and the number of attendees. That latter issue is relevant to whether a protest action has the capability to, for example, block the entrance to Martin Place Station and whether it would be blocked completely or only to a small inconvenience. As will be seen, these are relevant issues to this case. Like the plaintiffs in Brown, the plaintiffs here are litigating their business.

139. For these reasons, I conclude that the plaintiffs have standing to bring these proceedings and seek relief against both s 214A of the Crimes Act and cl 48A(1) of the Roads Regulation.

Section 214A of the crimes act

Burden on Implied Freedom: The First question

Overview of Position of Parties

140. As mentioned earlier, the plaintiffs’ case was that s 214A effects a significant burden on the constitutionally guaranteed freedom of political communication, in the present matter with respect to protests or public assemblies in which environmental issues about government and politics are agitated: see Clubb at [4] (Kiefel CJ, Bell and Keane JJ).

141. As mentioned, the State contended that s 214A(1) did not effectively burden the implied freedom because the conduct it proscribes is otherwise unlawful. Alternatively, if the Court were to find an incremental burden, then the State would accept there was a burden but it was inconsequential.

142. Those issues engaged the first question and involved significant discussion beyond the bare description above having regard to the construction of s 214A and in the light of current authority.

Relevant General Principles

143. The first question in considering the constitutional validity of s 214A is whether “the law effectively burden[s] freedom of communication about government or political matters either in its terms, operation or effect”: Lange at 567 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

144. This question has also been stated as “whether the statute in fact burdens the freedom”: Brown at [88] and [90]; Unions New South Wales v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58 (“Unions NSW”) at [40] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

145. The expression “effectively burden” in the first question invites attention to both the “legal effect of the law in question and its practical effect”: Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 (Hayne J) (“Monis”). It has been held that the expression means nothing more complicated than the effect of the law is to prohibit, or put some limitation on, the making or the content of political communication: Monis at [108] (Hayne J); Unions NSW 2023 at [119] (Keane J); McCloy at [126] (Gageler J (as his Honour then was)) and LibertyWorks at [136] (Gordon J); Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 (“Tajjour) at [145] (Gageler J (as his Honour then was)).

146. A law that “prohibits or limits political communication to any extent” generally imposes “an effective burden on the implied freedom of political communication”: Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 19 (“Banerji”) at [29] (Kiefel CJ, Bell, Keane and Nettle JJ). The extent of the burden only “assumes importance in the later process of justification”: Farm Transparency at [26] (Kiefel CJ and Keane J). But this first step in the analysis is not “perfunctory”: McCloy at [127] (Gageler J (as his Honour then was)). “The careful identification of the burden upon the implied freedom is the foundation for any posterior analysis of its justification”: Brown at [237] (Nettle J).

147. In Brown (at [182]), Gageler J (as his Honour then was) stated that a “law which has the direct and substantial effect of prohibiting or limiting assembly and movement for the purpose of political protest is accordingly a law which effectively burdens freedom of political communication.”

148. However, the first question requires consideration as to how the statute affects the implied freedom as a whole: Brown at [90] (Kiefel CJ, Bell and Keane JJ); Unions NSW at [35] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ). Thus, in Banerji at [20] (Kiefel CJ, Bell, Keane and Nettle JJ) it was found:

“[20] As has been emphasised by this Court repeatedly, most recently before the Tribunal's decision in this matter in Brown v Tasmania, the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication is relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law's effect on political communication as a whole. More specifically, even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.”

149. Accordingly, the implied freedom is not answered by reference to the operation of the statute in individual cases and is not a legal right per se: Brown at [90] and [183] (Gageler J (as his Honour then was)) and Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (“Wotton”) at [80] (Kiefel J). Nonetheless, evidence as to particular cases may provide useful examples of the statute’s effect and therefore, the burden the statute may have on the freedom: Wotton at [80] (Kiefel CJ, Bell and Keane JJ).

150. It was established by the decision of the High Court in Levy v Victoria (1997) 189 CLR 579 (“Levy”) that the freedom extends to non-verbal communication: Levy at 594–595 (Brennan CJ), at 613 (Toohey and Gummow JJ), at 622–623 (McHugh J) and at 638, 641 (Kirby J). As Brennan CJ there observed, “[t]elevised protests by non-verbal conduct are today a commonplace of political expression”: Levy at 595. “Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constitutes political communication although not a single word is uttered”: Levy at 638 (Kirby J). Accordingly, protected political communications include “non-verbal political communications” such as “assembly and movement for the purpose of political protest.”

Construction of s 214A

151. As was made clear in Brown at [61] (Kiefel CJ, Bell and Keane JJ) and at [307] (Gordon J), in order to answer the question regarding whether a statute impermissibly burdens the implied freedom of political communication, it is necessary to consider in some detail the operation and effect of the statute.

152. The most recent exposition of the principles of statutory construction is found in The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 at [23] (applying Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 381 [69]) as follows:

“[23] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' ... 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”

153. Whilst the construction of s 214A below is undertaken having regard to different components or elements of the provision, that has been done so in accordance with those principles, particularly having regard to the statutory context.

154. Properly construed, s 214A of the Crimes Act has several elements that the prosecution would need to prove against a person charged with such an offence. First, it must be proved that the person entered, remained on or near, climbed, jumped from, otherwise trespassed or blocked entry (“the conduct”). Secondly, it must be proved that the person engaged in the conduct with respect to any part of a major facility if that conduct caused damage to the major facility, seriously disrupted or obstructed persons attempting to use the major facility, caused the major facility (or part of it) to be closed, or caused persons attempting to use the major facility to be redirected.

155. Thus, s 214A(1) proscribes conduct that “causes” any one or more of the circumstances described in subss (1)(a), (c) and (d) or seriously disrupts or obstructs persons attempting to use a major facility for the purpose of subs (1)(b). The provisions of subss 1(a), (b), (c) and (d) have a distributive operation as indicated by the use of the word “or” after subss (1)(a), (b) and (c). When considered in the context of s 214A as a whole, the word “or” has its ordinary disjunctive meaning because each subsection concerns different causal effects or subjects.

General Intention

156. On the face of s 214A, it would not appear to be an offence requiring, as an element, intention to cause any of the consequences of effects in subss (1)(a)-(d): He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 565 and 568 (Brennan J) (“He Kaw Teh”). The offence under s 214A is not included among the examples of offences of specific intent in s 428B of the Crimes Act or otherwise expressed to require an intent to cause the results of the conduct.

157. I agree with the submission advanced by the plaintiffs that an offence under s 214A stands in contrast to offences in Div 2 of Pt 4AE, such as doing an act on or in connection with the operation of a railway “with the intention of… engaging the safety of any person who is on the railway” under s 211(1) of the Crimes Act. That is an offence of specific intent under s 428(2)(a) of the Crimes Act.

158. The judgment of the New South Wales Court of Appeal in Nguyen v The Director of Public Prosecutions (NSW) [2023] NSWCCA 42 (“Nguyen”) does not indicate, in my view, the need for a contrary approach.

159. Nguyen concerned a case stated by the NSW District Court pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). The only question of law submitted by the District Court was as follows: in proceedings against a person for publishing an indecent article contrary to s 578C(2) of the Crimes Act, is the prosecution required to prove that the person knew or believed that the article was indecent?

160. It was argued by the applicant in that matter that the offence required proof of objective and subjective elements. Button J accepted there was a general presumption that offence-creating statutes are speaking of offences within which most physical elements attract mental elements of some kind unless the presumption was rebutted (at [43]). His Honour was of the view that, by virtue of a number of factors, the presumption was rebutted in the case of s 578C(2) of the Crimes Act. However, those factors are plainly distinguishable from the circumstances of the present case.

161. First, a primary factor leading to his Honour’s conclusion, in that respect, was the understanding, in the criminal law of England, Wales, and New South Wales, that indecency was an element in criminal offences that is wholly objective based upon the contemporary standards of ordinary members of the community and did not require a mental element (at [44]) (see also the judgment of Adamson J, as her Honour then was, at [22]).

162. Secondly, his Honour also acknowledged that this was an unusual feature of the criminal law but by no means remarkable, let alone untenable (at [47]). In contrast, in s 214A, the offence creating provision in s 578C(7) explicitly required a person to have acted “knowingly” in order for that person to be inculpated by way of a contravention of the section by a corporation to which that person was connected. (Button J also observed that that requirement does not appear in s 578C(2) (at [51])).

163. Thirdly, Button J’s analysis also turned upon a consideration of policy with respect to indecency offences. His Honour considered that, if the applicant's position in that case were to be accepted, it would not be difficult to bring to mind examples whereby eccentric or thoughtless people could publish profoundly indecent articles without any sanction from the criminal law, if it could not be proved beyond reasonable doubt that such people were aware that the article was contrary to the standards of ordinary people. His Honour continued that it was impossible to accept such an outcome accorded with the objective intention of Parliament in creating and maintaining an offence such as s 578C (at [45]).

164. In the absence of any express mental element, I consider the plaintiffs to be correct to submit that the offence under s 214A would be presumed to require an intent to engage in the prescribed conduct, such as entry on or near a major facility. The offence is one of general intent: He Kaw Teh at 565 and 569-570 (Brennan J).

The Chapeau

165. The construction of the chapeau of the impugned provision and, in particular, the expression “remain on or near” (“the phrase”) and the terms of subs (1)(d), did not receive significant attention in submissions of the parties who tended to focus upon the elements and purpose of the impugned provision. Nonetheless, those aspects of the provision are of some real importance in ascertaining the validity of s 214A (or potentially as to the operation of s 31 of the Interpretation Act).

166. I will commence with an examination of the phrase. In doing so, I note that care should be taken, in this respect, not to simply search for dictionary definitions of words such as “remain”, “on”, ”near” in the chapeau or “redirected” in subs (1)(d), as there is a risk of ignoring a principal aspect of construction, namely, the construction of the phrase by reference to the surrounding context and, in particular, the immediate context of the words in the phrase, the larger context of s 214A itself and the Act a whole. Thus, in Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 (“Will”), Bell P (as the Chief Justice then was) observed at [51]-[54] as follows.

“[51] Just as a single statutory provision must be construed in its broader statutory context rather than in isolation, so too it is trite that individual words or expressions in a single statutory provision should not be construed in isolation: see Lorimer v Smail (1911) 12 CLR 504 at 509–510; [1911] HCA 44; R v Brown [1996] AC 543 at 561; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396; [1996] HCA 36; see also Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388; [2007] NSWCA 190 at [10]–[14], quoting Lord Macmillan, Law and Other Things (1937, Cambridge University Press) at 166; 2 Elizabeth Bay Road Pty Ltd v The Owners — Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [82]–[83]; El- Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [108].

[52] So too, care must be taken not to place too heavy reliance on the definition of words in dictionaries, noting that different considerations apply where the statute itself supplies its own dictionary: cf Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12. This is so for a number of reasons.

[53] First, focusing on the definition of a particular word or words in a dictionary may detract from the need to attend to the meaning of the words of a statutory provision as a whole and the meaning of the whole statutory provision in the wider context of the Act or Acts in question: see Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [23]; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 at [27]; 2 Elizabeth Bay Road at [81]; Smalley v Motor Accidents Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 at [47]–[48].

[54] Secondly, dictionaries will often supply a range of meanings for a particular word and consultation of a dictionary will supply no guidance to the meaning of the word or words which the legislature intended: see Commissioner of Taxation of the Commonwealth of Australia v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17 at [49]; South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [78]; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28].”

167. Basten JA who was generally in agreement with Bell P in Will, made the following observations, which are also relevant in the present context (at [112]-[116]):

“[112] The primary judge was taken to, and quoted, the Australian Oxford Dictionary definition of pest as meaning “1. A troublesome or annoying person or thing; a nuisance. 2. A destructive animal, especially an insect which attacks crops, livestock etc.” The unhelpfulness of this definition was immediately conceded by the respondent, accepting that a pest animal needed to be “more than a mere annoyance.” Further, although we often describe annoying people as pests, the definition of animal in s 530 expressly excludes people. As to the second limb of the definition, it is true that we **192 commonly refer to insects (such as locusts or cockroaches) as pests, but the definition of animal in the Act excludes insects.

[113] In Vanstone v Clark the Full Court of the Federal Court was required to determine whether particular conduct constituted misbehaviour for the purpose of engaging a ministerial power to remove a commissioner of the Aboriginal and Torres Strait Islander Commission. Referring to an earlier decision, Weinberg J stated:

“[163] I agree with his Honour that the term ‘misbehaviour’ is inherently vague, and lacks precision. Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation. Examples of cases where ‘misbehaviour’ has been established are generally unhelpful. In this area context is all-important. When an Act provides for the removal of a statutory office-holder on the ground of ‘misbehaviour’, the meaning to be accorded to that term must be gleaned from its statutory context.”

That approach, expressed in unequivocal terms, is apt to be applied in the present case.

[114] It is important to note the underlying justification for this approach. As explained by Leeming JA in 2 Elizabeth Bay Road Pty Ltd v The Owners — Strata Plan No 739434

“[82] … It is axiomatic that (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence. Lord Hoffmann stated as much in R v Brown [1996] AC 543 at 561, a passage endorsed in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397, when observing that the fallacy of treating words as individual building blocks construed in isolation is common among lawyers.”

[115] Because the meaning of a word may be affected by other associated words, there is a tendency to treat this principle as no more than a variation on the constructional canon represented by the Latin phrase noscitur a sociis, it is known by its associates. This canon is described by Pearce as a rule which reflects the same philosophy as the general approach of reading an Act as a whole. However, that statement tends to obscure the principle in two respects. On the one hand, the canon deals with associated words which allow the reader to form a picture of the whole matter from a set of examples: it remains a semantic approach. On the other hand, the statement reads the canon at a level of generality as merely an example of reading an Act as a whole. Both propositions diminish the syntactical significance of the principle.

[116] Although reference is correctly made to context and to the requirement to adopt a purposive construction, together with the availability of extrinsic materials which may support such an approach, in each case there are elements of imprecision. Context, for example, may be narrowly or broadly approached; similarly, purpose may be derived from the text of the legislation or by reference to extrinsic material. What is clear, however, is that there is limited space for reference to a dictionary in modern principles of statutory **193 construction. The purpose of a dictionary is not to state the ordinary meaning of words with precision, but to reflect common usage in a comprehensive way, including all appropriate usages. A dictionary will not tell one the meaning attached to a particular word in a particular communication.”

168. The starting point for this analysis is the appreciation that the word “near” is juxtaposed in the phrase with the word “on”. The word “or” in the phrase is plainly disjunctive. Thus, remaining “near” a major facility is not remaining “on a facility”, which concerns a person who has entered a premises and thereafter remains on any part of a major facility. Upon this construction of the chapeau, a person situated “near” any part of a major facility is not physically within the boundaries of any part of the major facility.

169. In this context, the word “near” is not one of “restraint” but an “expanding word”, that is, extending the operation of the word “remain” so as to give effect to the intention of the legislature to cover conduct taking place outside the boundaries of the major facility: Tyne Keelmen v Davison (1864) 16 CBNS 612 at 622 (1271) (Byles J).

170. Whether a person is “near” a place is ultimately a question of fact and degree which must be resolved in the circumstances of the particular matter: Tunney v Keehn; Ex parte Keehn [1977] Qd R 6 at 8 (Williams J), at 13 (Dunn J) and Lucas J agreeing at 6; McMillan v Barclay Curle & Co Ltd (1899) 2 F (Ct of Sess) 91 at 93 (Lord Adam). Nevertheless, I accept that the word “near” used in the phrase is suggestive of some physical proximity to any part of the major facility, as submitted by Mr Free SC, for the plaintiffs, because the words of the phrase, when viewed together, suggest some geographical or spatial relationship or connection with any part of a major facility. Further, subs (1)(a) concerns direct engagement with the facility and subss (1)(b)–(d) connote some proximity to the major facility sufficiently for the causal effects to eventuate. However, the precise relationship or connection is otherwise indeterminate and depends upon the circumstances of the conduct.

171. Some consideration should be also given, in this context, to the words “or otherwise trespass on” within the chapeau.

172. In my view, the words “or otherwise trespass on” should not be construed ejusdem generis, such as the words would be understood as meaning “likewise” or read restrictively with respect to the preceding words of the chapeau.

173. Putting aside broader views expressed against the application of that rule (see Gas Fuel Corporation (Vic) v Comptroller of Stamps [1964] VR 617 at 620-621 and Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373 (Mahony JA), the rule has no operation with respect to the conduct in the chapeau because of the absence of a genus, with the preceding word “near”, as I have explained, being inconsistent with the notion of a trespass. The same conclusion may be reached by reference to context in the construction of the provision.

174. When seen in that light the words “or otherwise trespass on” must be understood as extending the operation of the preceding words of the chapeau: R v Uddin [2017] EWCA Crim 1072; Cordingley v Cheeseborough (1862) 4 De GF & J 379 at 388; (1862) 45 ER 1230 at 1234 (Lord Westbury LC); Al Mana Lifestyle Trading L.L.C. v United Fidelity Insurance Company PSC [2023] EWCA Civ 61 at [25] (Males and Nugee LJJ).

175. In my view, the word “otherwise” in the context of the words used in the chapeau “or otherwise”, means “in another way” or “a different way”: Corporate Affairs Commission Bradley [1973] 1 NSWLR 382 at 396 (Sheppard J); Purdon v Dittmar [1972] 1 NSWLR 95 at 98 (Sugarman P with whom Holmes JA and Taylor AJA agreed).

176. In Crowe v Graham (1968) 121 CLR 375 at 388; [1968] HCA 6 Windeyer J stated:

“The words “or otherwise publishes” in s. 16 (d) mean “or in other wise publishes” that is to say “in some other manner or way publishes”. To read “or otherwise” as meaning “likewise”, “in some like manner or way”, seems to me a departure from the ordinary meaning of the phrase. I do not think that the meaning and operation of s. 16 (d) are to be ascertained by asking what it would mean if the words “or otherwise publishes” were not there, and then treating them as something added. It is true that they did not appear in an enactment which can be regarded as the forerunner of s. 16 (d). And it is true that that enactment appears to have been designed to prevent indecent prints and pictures being in one way or another forced upon the notice of unwilling persons. The acts it prohibited were nuisances, conduct annoying to persons unwillingly subjected to it. It can thus be said that if s. 16 (d) did not include the words “or otherwise publish” it would create a number of particular offences having a common characteristic, being in that sense generic. But the words “or otherwise publish” are there. Their effect is not to enlarge an existing genus by adding new things of like kind. It is to demonstrate a different and wider genus to which the prohibited acts all belong, namely publishing. Those who like Latin tags as rules of construction should remember that the ejusdem generis doctrine should be understood with, and in a sense as an exception to, the rule generalia verba sunt generaliter intelligenda. I consider it is plain that if s. 16 (d) be read according to the ordinary rules of grammatical construction the earlier words state particular manners or ways in which obscene and indecent material can be published.”

177. The word “or” following “trespass on”, namely “or block entry”, in the chapeau appears to be used disjunctively to deal with the blocking of entry to the major facility, even if there is none of the conduct described in the remainder of the chapeau or the blocking occurs outside of the facility.

Subsections (1)(a)-(d)

178. As mentioned, each of the circumstances described in subss (1)(a)-(d) are distinct in that they represent different causal effects of the conduct. This conclusion does not merely derive from the distributive operation of subss (1)(a)-(d). There is a qualitative difference between each of the consequences of the conduct described in the subsections. It will be sufficient to expand upon the consideration for present purposes by analysing subss (1)(b) and (d).

179. The State made submissions which, implicitly, raised questions as to the interpretation of the words “to be redirected” in subs (1)(d). Those contentions, which derive from two separate parts of the State submission, will be considered in the course of construing the provisions of subs (1)(d).

180. First, in the course of submissions made by the State in support of the contention that the plaintiffs do not have standing to bring their claim under the Constitution that s 214A of the Crimes Act was invalid, it was contended that the plaintiffs had established no basis for their claim. This was because, it was submitted, the plaintiffs had not established that they had contravened subs 214A(1)(d) (or would have done so if their conduct had occurred after the passage of the impugned law) or will contravene the provisions in the future.

181. The State contended that upon the evidence relied on by that plaintiff, the plaintiffs’ actions were insufficient to attract subs (1)(d)), even though the persons remained near the major facility, namely, a railway station. In support of that proposition, the State submitted that the highest the evidence of the plaintiffs rose to was that a person, entering or exiting Martin Place Railway Station (a prescribed major facility) at the time of a protest, may have had to “walk around” assembled protesters. It was said, in that respect, that there is “no evidence of persons being redirected” as a result of the conduct of the plaintiffs. Noting the distinction between Town Hall and Town Hall Station, (only the latter attracting the attention of s 214A), it was submitted that there was “no evidence that protests at Town Hall caused persons attempting to use Town Hall Railway Station to be redirected.”

182. I have earlier summarised the evidence of both plaintiffs in this respect as well as summarising evidence lead by the plaintiffs of larger protests in or around Sydney Town Hall having the potential to impact Town Hall Station. In the light of the State’s submission, however, the analysis of that evidence requires some elaboration Ms Jacobs save that she attended a rally in 2016 at Martin Place in Sydney. The rally was situated near the entrance to the train station marked by steps from Martin Place to Martin Place Station giving access to and from the railway station. The assessment is borne out by Ms Jacobs’ reference to the station having stairs to come up to Martin Place which has persons passing through and, in particular, there were commuters travelling to work as well as other people “milling about”. Ms Jacobs’ evidence was that there were about 100 people in the rally and that “people coming in and out of the train station would have had to walk around us” although “she noted we do try to ensure that we are not blocking all exits completely.”

183. It may also be mentioned that Ms Kvelde gave evidence of her attendance at a “Beemergency” event with a large group of people in 2019. Apart from laying in the middle of Elizabeth Street, Sydney, at a point opposite the entry to St James Station (with two other people) (Ms Kvelde stated it was “near the entry to St James Station”), she there re-joined the “larger group” and marched to Town Hall. Once the group arrived there were signs and speeches about the impact of climate change (on the insect population). Ms Kvelde could not remember if the action at Town Hall “blocked the entry to the station” because she was around the side of Town Hall Station but “there were enough people at the demonstration that people wanting to use the train station may have had to walk around protest members.” The protesters were at Town Hall for about 45 minutes.

184. It is implicit in the submission of the State that protesters on these occasions were near a major prescribed facility (and not on them). Upon the aforementioned discussion of the construction of the chapeau and, in particular, the words “remain … near”, that part of the State’s contention may be accepted given the proximity to any part of a major facility.

185. However, the State also contended, insofar as their presence at the entrance to the railway station caused commuters to walk around them, the commuters were not being redirected for the purposes of subs (1)(d).

186. By way of introduction to my consideration of the State’s submission in this latter respect three observations may be made:

1. The evidence from Ms Jacobs was that the protesters caused persons to take a different course or route to gain entry, to and exit from a station entrance by walking around protesters. There seems also to be a suggestion that from time-to-time persons may have been required to use other exits. She referred to efforts to try to not block stairway completely. ^[92]

2. The evidence of Ms Kvelde is not as strong in that respect, but it is incorrect to submit, as the State did, there was no evidence that persons attempting to use Town Hall Railway Station were redirected in so far as persons were, on Ms Kvelde’s estimation, required to walk around the protesters to gain access. Plainly, the larger protests referred to in the evidence would have had a more substantial effect in causing persons to be redirected; perhaps to the point where, if the protests were held after the Amendment Act, subs (1)(b) might be engaged.

3. As will be discussed below, the examples given by Ms Jacobs and Ms Kvelde are illustrations of persons being inconvenienced by the protesters in having to take alternative routes or move in a different direction which, I will demonstrate below, would entail the protesters being caught by subs 214A(1)(d), when read with that part of the chapeau referring to the conduct of “remain… near” (given the protesters were near the Railway Station).

187. Before coming to the second aspect of the State’s submission, the starting point for consideration should be another aspect of the submissions. The State contended, correctly in my view, that the conduct in the chapeau must “cause” one of the consequences or harms in subss (1)(a)-(d) in order for there to be an infringement of the provision. It follows that, in applying the logic of the provision, conduct involving a person “remaining… near… any part of a major facility” must cause persons attempting to use the facility to be “redirected”.

188. The State’s second proposition was subs 214A(1)(d) was predicated “on some form of obstruction” and, hence was “itself unlawful” because the conduct identified in the chapeau must cause persons attempting to use the facility to be redirected. The State’s submission was silent as to what type of obstruction it envisaged in that respect, how that may differ from the type of obstruction referred to in subs (1)(b) or whether the obstruction was of the kind described in existing laws (even though the State later relied upon such laws in suggesting that s 214A only applied to areas already proscribed by existing laws). I will find that subs 214A(1)(d) should not be read so that the expression “to be redirected” is synonymous with the words “obstructs” (or “disrupts”) and the provision should not be read down in that manner.

189. The construction of the impugned provision which follows proceeds in the light of those two aspects of the State’s submission.

190. The State did not advance submissions as to the construction of subs (1)(d) as such. However, it may be observed that the illustrations relied upon by the State in support of the above mentioned contentions each concerned persons who are “attempting” to use a major facility but were redirected.

191. Given that contention, it is appropriate as a starting point to examining the State’s two contentions to consider subss (1)(b) and (d) of s 214A together as both of those provisions concern persons “attempting” to use a major facility and the legislature may, therefore, be taken as dealing with the same species of action by the persons who bore the consequences referred to in subs(1)(b) and (d). This is the immediate statutory context.

192. I will commence with the construction of subs (1)(b).

193. The words “disrupts or obstructs” is a composite expression in which the words collectively contribute to the meaning as to what consequence or effects caused by the conduct is proscribed by s 214A (1)(b). That observation is made notwithstanding that the word “causes” does not appear in subs (1)(b). Thus, even though the expression “disrupts or obstructs” may, when read in isolation, connote another form of conduct or acts (of the kind referred to in the chapeau), when read in the light of the structure of subs (1), this conclusion is not reasonably available.

194. Further, subss 214A(1)(a)-(d) are preceded by the words “if that conduct” which appears at the end of the chapeau thereby indicating that all of those subsections are concerned with the consequences of the conduct. That much is also made clear from the use of the word “causes” in subss (1)(a), (c) and (d). Subsection (1)(b) must take its meaning from the immediate context.

195. It is, however, useful to commence a discussion as to the meaning of the expression “disrupts or obstructs” by considering each word in the expression separately.

196. The word “obstructs” in subs (1)(b) is not a word of art nor has it acquired any special meaning other than a general association with a particular kind of nuisance: Haywood v Mumford (1908) 7 CLR 133 at 140 (O'Connor J) (“Haywood”). As a matter of ordinary principles of statutory interpretation, the word (together with the word ‘disrupt’) must take its meaning from the context in which it appears: Jobling v Blacktown Municipal Council (1969) 17 LGRA 92 at 101 (Asprye J whom Wallace P and Sugarman JA agreed) (“Jobling”); Auburn Municipal Council v Ivanoff (1964) 10 LGRA 258 at 260 (Maguire J) (“Auburn Municipal Council”). That approach would suggest caution in applying the meaning attributed to the word “obstructs” in the line of cases dealing with offences under statutes prescribing in various ways the obstruction of officers.

197. A similar observation might be made with regard to the assessment of the meaning of the term “obstruction” when used in the Police Offences Act 1890 (Vic). In Hayward, the Chief Justice emphasised that the meaning attributed to the expression was one deriving from the construction of the word “obstruction” in s 6 of the Police Offences Act. The definition of “obstruction” gave the word a particular meaning, including any continuous physical occupation of a portion of the street which appreciably diminishes the space available for passing and repassing and the lawfulness or unlawfulness of the obstruction was immaterial.

198. Of closer association to the present proceedings is the judgment of the New South Wales Court of Appeal in Jobling which was concerned with the expression “to obstruct” in “Local Government Ordinance 52 cl 20(a)” which made it an offence, in a public bathing reserve or public bath, to “do any act which would be likely to … obstruct, inconvenience … any person.”

199. Accepting that the determination by the Court was influenced by reference to inconvenience in the ordinance, Asprey JA came to the view that the word “obstructs” in the ordinance meant “to impede, hinder, retard or to render difficult of passage,” relying, in large part, on what Maguire J described in Auburn Municipal Council as the common natural meaning of the verb “to obstruct.” ^[93] That approach sits comfortably with the context in which the word obstructs appears in subs (1)(b). Subsection (1) concerns the conduct of persons attempting to use the major facility and is plainly directed to, as earlier discussed, the consequences of that conduct, namely, the impact upon persons attempting to use the facility, albeit with varying degrees of hindrance or difficulty of passage.

200. While disruption may refer simply to an interruption to normal continuity of an activity, ^[94] the word must take its meaning in subs (1)(b) in the immediate context of the expression “obstructs or disrupts”. That would suggest the legislature had in mind that the meaning of the word is more closely associated with another meaning of the word, namely, the production of disorder or disruption to a course of activities.

201. It follows that the composite expression “disrupts or obstructs” means an interference or hinderance which is intentional (in the sense earlier discussed in this judgment) and substantial in the sense that there is a real impediment or difficulty causing disorder or disruption.

202. Whether or not the expression imports a notion of unreasonableness would require further deliberation which is presently unnecessary. What is apparent, irrespective of the use of the word “seriously” in subs (1)(b), the expression is not concerned with hinderances, impediments or disruptions which result in mere inconvenience in attempting to use a major facility, that is, resulting in some deviation in a path chosen without preventing or significantly hindering an attempt to access or egress from a major facility. The word “seriously” then simply varies that calculus.

203. In subs (1)(b), the words “disrupts or obstructs" are governed by the adverb “seriously” so that the disruption or obstruction for the purposes of subs (1)(b) must itself be serious or have serious consequence. The word “serious” has the ordinary meaning of having grave or important consequences, particularly undesired ones or ones giving cause for concern. ^[95] In that respect, the expression "seriously disrupts or obstructs” might be understood as creating serious impediment or hindrance, approaching an impossibility for persons to proceed in the usual manner (in attempting to use the facility) short of a closure or complete blockage (noting that subs (1)(c) deals with closure).

204. It is a relatively short step from that analysis to conclude that where subs (1)(d) refers to a person being redirected, the provision excludes from the reach of the subsection circumstances where a person was seriously disrupted or obstructed for the purposes of subs (1)(b). For reasons already advanced, the legislation should be taken as dealing with different consequences in the respective subsections. The legislation is clearly dealing, in subss (1)(a)-(d), with different “harms” or “harmful consequences”, whether represented in graduations or otherwise. That conclusion is a fortiori when regard is had to the provisions of s 144G of the Roads Act as considered shortly below.

205. I turn then to the meaning of “to be redirected”.

206. The word “redirected” is not defined in the Act. Nor does the Second Reading Speech for the Bill otherwise cast any light on the meaning on the expression (the concept of redirection is not discussed as such).

207. The Attorney-General does, however, refer in the Second Reading Speech to the need to enable people to move freely. The Attorney-General stated that the Bill “in no way seeks to impose a general prohibition on protests” but explained that “the right to protest must be weighed against the right of other members of the public to move freely and not be obstructed in public places.”

208. The expressions moving “freely” and not being “obstructed” in the Second Reading Speech simply obscure rather than assist in the construction of subs (1)(d). More can be gained, in my view, from the immediate context.

209. I return then to the construction of subs (1)(d).

210. The word “redirected” in the expression “to be redirected” in subs (1)(d) should not be read as having an equivalent meaning to the word “obstructs” or the word “disrupts” in subs (1)(b), nor the composite expression “disrupts or obstructs”. My reasons for this conclusion are as follows:

1. Plainly enough the legislature does not use the expression “disrupts or obstructs” or singularly the words “obstructs” or “disrupts” in the subs (1)(d) in circumstances where the legislature has otherwise chosen to use that language in the same subsection, namely, subs (1)(b).

2. There is a long-established presumption that different words used within an Act have different meanings. However, this presumption will be of limited force if the words of the provision themselves are sufficiently clear either textually or by context that the presumption would not apply. ^[96] This is not such a case.

3. In the case of s 214A(1), the context reinforces rather than displaces the presumption. When prohibiting certain conduct having certain effects, the use of different expressions in different parts of the same subsection is plainly and intuitively to provide for different meanings. Further, the words themselves have sufficiently clear and distinct meanings.

4. The use of the adverb “seriously” in subs (1)(b) does not detract from this conclusion. As earlier mentioned, the adverb is used in the grammatical sense to intensify the ordinary meaning of the expression “disrupts or obstructs.” More significantly, in a cognate Bill the legislature did not adopt the structure of s 144G(1) in the enactment of s 214A(1). Section 144G(1) proscribes conduct (defined in the chapeau to subs (1)) which causes damage to a bridge, a road or a tunnel (subs (1)(a)) or which seriously disrupts or obstructs, inter alia, pedestrians attempting to use a bridge, tunnel or road (subs (1)(b)). Unlike s 214A(1) of the Crimes Act, there is no separate proscription based upon the consequence of causing a person attempting to use a facility to be redirected.

5. Rather, the provisions of s 144G provide that a person seriously disrupts or obstructs, inter alia, pedestrians if the pedestrians are redirected. Subsection 144G(2) is introduced by the words “without limiting subsection (1)(b)”, but, in my view, subs (1) should be seen as providing an expanded meaning for the expression “seriously disrupts or obstructs” in subs (1)(b) given the differing meanings of the expressions as I have discussed. In any event, no equivalent of subs 144G(2) appears in s 214A. This is, in my view, a clear indication that the legislature envisaged the words “to be redirected” to have a different meaning to “seriously disrupts or obstructs” in s 214A. ^[97] The establishment of a discrete consequence of the expression “to be redirected” in subs 214A(1)(d) from the notion of “seriously obstructs or disrupts” in subs (1)(b) indicates a legislative intention to treat the concept of “to be redirected” differently from “seriously disrupts or obstructs.” There was a plain departure from the approach adopted in s 144G.

6. Further, the chapeau to s 144G(1) does not refer to “remains… near” in the conduct specified in the chapeau. It would appear that the discrete recognition of the consequence of “to be redirected” in s 214A(1) corresponds to the inclusion of those words in the chapeau of that provision.

7. It would appear from the Second Reading Speech that the legislature approached the Bill in the context of familiar expressions used in the context of existing laws making aspects of public assembly or protest unlawful or behaviour associated with such communication unlawful, namely: intentionally or recklessly destroying or damaging property (s 195(1)) of the Crimes Act) and obstruction (s 213 of the Crimes Act; ss 6 and 24 of the Summary Offences Act, ss 125 and 236 of the Road Rules 2014 (NSW) and s 200(4) of Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”). The language in subs (1)(d) departs from those familiar expressions or formulations. This consideration also arises in the context of the Attorney-General making clear in the Second Reading Speech that the new laws were intended to achieve greater restraints or deterrents over existing laws. Nonetheless, the language of ‘redirection’ was used as the fourth limb of the consequences or effects in subs (1).

8. The ordinary meaning of “redirect” is to “send in a new direction, especially (a letter to a new address).” ^[98] Having regard to the earlier meaning attributed to the words obstruct and disrupt in s 214A(1), the ordinary meaning of the expression “to be redirected” would result in the provisions of subs (1)(d), having a wider and different operation than those expressions.

9. As discussed above, there is an apparent differential harms or consequences arising from the conduct described in the chapeau of s 214A(1) with subs (1)(d) representing a separate and potentially less serious effect or consequence.

211. It is, of course, possible that a person may be redirected because the person has experienced an obstruction of some kind but that is not invariably the case. Conceptually, the provisions of subss (1)(a)-(d), (and (1)(c)) are not dealing with conduct or acts by those engaged in public assembly or protest per se but the consequences of any conduct as indicated by the introduction of the subss (1)(a)(c) and (d) with the word “causes”. The terms of subs (1)(d) do not refer in any respect to a disruption or obstruction (whether punishable under statute law or otherwise). Those consequences constitute an element of the offence charged by reference to subs (1)(d). Further, the existence of an obstruction or disruption is not a jurisdictional requirement for the operation of subs (1)(d).

212. When seen in this light, “redirected” may be simply understood to mean directing a person to a new or different place or sending them in a new direction. ^[99] The word redirected then may be understood as in opposition to direct; meaning a straight or undeviating course. ^[100] It may involve inconvenient but not serious interference with the operations of the major facility, and more particularly, those attempting to use the facility.

213. A person may walk around a group of protesters or use, for example another entrance to a Railway Station by simply taking a route that avoids the protesters in either case where the protesters are situated near a major facility in a manner, which causes a diversion or new direction. At one end of the spectrum of possibilities, a large sign or banner held by a protester, particularly if provocative in its message, may cause the person to be redirected without that protester(s) offering any direct obstruction or disruption.

214. The description of the conduct at Martin Place and Town Hall Station by Ms Jacobs and Ms Kvelde as mentioned at the introduction of this construction of the provisions and is clearly not a model of precision. For example, issues may arise as to proof that a redirection was caused by a protester. Assessments at this stage must also necessarily be circumscribed given the absence of consideration of any counterpart provision or precedent with respect to the same. However, upon the above construction of s 214A(1), the aforementioned protests, as described in the evidence of Ms Jacobs and Ms Kvelde, in my view, would be likely to be caught by subs 214A(1)(d), had they occurred after the commencement of that provision.

215. As earlier mentioned, it might be the case (although I have cast doubt upon it) that the Attorney-General has expressed a view in his Second Reading Speech, that the impugned law did not intend to include peaceful protests in public places near major facilities but it does not follow that the assessment by the Attorney-General, in that respect, is necessarily correct.

216. As Ms Jacobs stated, the protesters aimed at not wholly obstructing the railway entrance, but it may be inferred by that statement and by the numbers of protesters gathered that there was some activity at that entrance which required commuters and others to deviate their journey, even though the expression “walk around” used by Ms Jacobs is unclear in describing the extent of the deviations. The same applies to Ms Kvelde’s evidence with the caveats I have earlier discussed.

217. For the reasons given above, the deviation or change in direction whether momentarily or resulting in a greater inconvenience of moving to a different entrance to the railway station falls squarely into subss (1)(d) with respect to a protest near the respective railway stations. Larger protests at the same locations, short of causing serious obstruction or disruption, may simply increase the extent of the redirection and consequently cause greater inconvenience. Subs (1)(d) does not depend for its operation upon an unlawful obstruction.

218. However, and for reasons I will later discuss, it does not follow that the conduct was “unlawful”, save for the operation of s 214A. As mentioned, it is difficult on the limited factual material before the Court to draw firm conclusions as to whether the conduct of Ms Jacobs and Ms Kvelde at the respective railway stations constitutes criminal or tortious conduct, but it is most unlikely that they have done so. I will return to the question but it follows in this respect, s 214A criminalises conduct which otherwise constitutes lawful protests, or at least substantially does so.

219. I have reached this conclusion as to the construction of subss (1)(b) and (d) after having given due regard to s 31(1) of the Interpretation Act.

220. Section 31 of the Interpretation Act, provides as follows:

31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament

(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament—

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.

221. The equivalent Commonwealth provision, s 15A of the Acts Interpretation Act 1901 (Cth) provides as follows:

15A Construction of Acts to be subject to Constitution

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

222. In Coleman v Power (2004) 220 CLR 1 at [110] (“Coleman”), McHugh J stated the following regarding the equivalent Queensland provision:

“[110] Accordingly, the issue is whether that part of s 7(1)(d) which concerned insulting words should be severed from the paragraph or read down. In my opinion, the clear intention of s 9 of the Queensland Acts Interpretation Act is that, where possible, an invalid law should be saved to the extent that it is within the power of the Queensland legislature. In the present case, the relevant part of para (d) of s 7(1) was within the power of the Queensland legislature except to the extent that it penalised insulting words uttered in discussing or raising matters concerning politics and government in or near public places. It should be read down accordingly.”

223. Hence, following Coleman, s 31(1) of the Interpretation Act allows for the reading down of a provision.

224. In Brown the plurality stated at [71] as follows:

“[71] It might be thought that the consequences of the conduct of a protester, or of their presence, which are sought to be avoided by the Protesters Act, might provide some guidance as to the identification of the area the subject of the Protesters Act. Tasmania's initial position was that the phrase “prevents, hinders or obstructs” should not be read narrowly, but in the course of argument it accepted that it should be construed, consistently with the principle of legality and s 3 of the Acts Interpretation Act 1931 (Tas), so as to apply only to the conduct or presence of a person which “substantially” or “seriously” hinders or obstructs business activities.” ^[101]

225. When discussing the operation of s 15A of the Acts Interpretation Act 1901 (Cth), Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ explained in Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 (“Victoria v Commonwealth”) the following, at 502-503:

“It is well settled that s 15A cannot be applied to effect a partial validation of a provision which extends beyond power unless “the operation of the remaining parts of the law remains unchanged”. Nor can it be applied to a law expressed in general terms if it appears that “the law was intended to operate fully and completely according to its terms, or not at all”.

Where a law is expressed in general terms, it may be more difficult to determine whether Parliament intended that it should, nonetheless, have a partial operation. And there is an additional difficulty if it “can be reduced to validity by adopting anyone or more of a number of several possible limitations”. It has been said that if, in a case of that kind, “no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid”.

226. Following Victoria v Commonwealth, s 31 of the Interpretation Act allows for the severance of provisions of legislation provided that severance does not change the meaning of the provision. ^[102] Similarly, where a law is intended to operate in an area where Parliament's legislative power is subject to a clear limitation, it can be read as subject to that limitation.” ^[103] By analogous reasoning, that same limitation would apply to any reading down of the provisions of s 214A.

227. In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 339, Brennan J stated:

“But s 15A can save a provision that is literally in excess of legislative power only if two conditions are satisfied (50): first, that "the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law" (51) and, second, that the operation of the law upon the subjects within power is not changed by placing a limited construction upon the law (52). Neither s 127C(I)(b) nor the Act as a whole satisfies the first of these conditions.”

228. The limits and constraints upon the application of s 15A are further expanded on in New South Wales v Commonwealth (2006) 229 CLR 1 at [597]:

“[597] As to s 15A of the Acts Interpretation Act, the provision can save the validity of a federal law generally where the law itself indicates a standard or test that may be applied for the purpose of limiting its operation and preserving the validity of the law thus limited, so long as the outcome has not been changed so as to make it something different from the law enacted by the Parliament (838). If the Court concludes that the challenged law “was intended to operate fully and completely according to its terms, or not at all” (839), the Court will not, under the guise of interpretation and severance, uphold what would effectively be a new and different law.”

(emphasis added).

229. In its primary case, the State would seek, by one part of its submission, to preserve the validity of subs (1)(d) by reading of the provision as confined to “an obstruction”, thereby maintaining (on the State’s case) an overlap with existing laws and rendering no incremental effect from subs 214A(1)(d). However, that would require an impermissible reading down the provision, having regard to the textual and contextual analysis I have conducted and the Parliamentary intention conveyed by the language of the statute. By way of illustration, subs 214A(1)(d), when read with that part of the conduct in the chapeau of “remain…near”, demonstrates an intention by the Parliament to widen the reach of s 214A beyond “a disruption” or “an obstruction” or the collective expression “disrupts or obstructs” appearing in subs (1)(b).

Subsections (3)-(6)

230. Unlike the provisions of s 214A(2), subss (3)–(6) do not prescribe upon whom the burden of proof lies with respect to the satisfaction of the qualification or limitations within those subsections.

231. Subsections (3) and (4) provide that a person does not commit an offence under s 214A if the conduct referred to in subs (1) forms part of industrial action, an industrial dispute, or an industrial campaign or occurs at the workplace in which a person works or at a workplace owned, occupied, operated or used by an employer of the person.

232. Subsection (5) provides that s 214A does not apply to the extent that it prohibits conduct in relation to the Parliament House or office of a member of Parliament. Subsection (6) provides for circumstances in which a person does not commit an offence under this section, if what is done or omitted to be done, is done in accordance with the consent or authority of the NSW Police Force, another public authority or, for a privately owned major facility, the owner or operator of the facility.

233. Section 417A of the Crimes Act provides that:

417A Proof of exceptions

(1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings.

(2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person.

(3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it.

(emphasis added).

234. However, in determining whether a provision of the Crimes Act is an “exception, exemption, proviso, excuse or qualification”, the principles developed by the common law apply: Director of Public Prosecutions v Belani; [2005] NSWSC 1013; (2005) 64 NSWLR 319 at [61] (Johnson J); In Vines v Djordjevitch; [1955] HCA 19; (1955) 91 CLR 512 (“Vines”) at 519 Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ said:

“[519] In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. …But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.”

(emphasis added)

235. In Chugg v Pacific Dunlop Ltd; [1990] HCA 41; (1990) 170 CLR 249 at 257 (“Chugg”), Dawson, Toohey and Gaudron JJ held that, “[f]or the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an “exception”), which serves to take a person outside the operation of a general rule.” Their Honours explained that “the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention to impose upon the accused the ultimate burden of bringing himself within it.” (emphasis added, internal quotations omitted).

236. In my view, the provisions of subss (3), (4) and (6) should be properly characterised as providing some special grounds of excuse, justification or exculpation, depending upon the facts and circumstances described within each subsection, to the general liability provided under s 214A(1). This approach conforms to the language of these subsections which refer to “a person not [committing] an offence” and are in the nature of a proviso or exception to liability otherwise arising under the section.

237. Similarly, in Chugg, it was stated (at 258) that “if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove.” However, there may be “something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.”

238. Both Chugg and Vines emphasise that a strong factor in resolving the question of onus is whether the provision involves special or different facts. Dawson, Toohey and Gaudron JJ stated in Chugg (at 487) that:

“One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. … Such is ordinarily the case where, in the terms used in Reg v Edwards [1975] QB 27 at 40, there is a prohibition on the doing of an act ‘save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’. See Reg v Hunt [1987] AC 352 at 375, where Lord Griffiths considered the statement from Reg v Edwards ‘an excellent guide to construction’. If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.”

239. In Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 (“Dowling”), Dixon CJ (with whom Fullagar and Kitto JJ agreed) stated (at 140) that:

“The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it.” (emphasis added).

240. In Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 (“United Telecasters”), Brennan, Dawson and Gaudron JJ (as Brennan CJ then was) held (at 601) that statutory exceptions to the general rule “are not confined to those which expressly cast the burden of proof upon the accused (see, eg Crimes Act 1900 (NSW), s 417), but extend to cases in which an intention to do so is necessarily implied.” Their Honours stated (at 601) that:

“Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form.”

241. In that case, the High Court was considering an appeal from the Court of Criminal Appeal. The relevant statute included a subsection that limited and cut down the scope of a term in the offence-creating provision. Their Honours held that the scope is cut down “by way of definition rather than by way of proviso, exception or saving.” In those circumstances, the legislature was not taken to have intended that the subsection should operate without limitation unless an accused brought himself within its terms.

242. The High Court authorities in Chugg, Dowling and United Telecasters were recently applied by the Court of Criminal Appeal in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174; (2019) 101 NSWLR 245 (“Grafil”). Preston CJ of the Land and Environment Court (with whom Davies and Adamson JJ, as her Honour then was, agreed) held that an accused charged with an offence under s 144 of the Protection of the Environment Operations Act 1997 (NSW) bears the burden of proof that they had lawful authority to use the land as a waste facility. The Court held (at [226]) that, although lawful authority is included in the description of the offence in s 144(1), “the express language used in s 144(2) indicates a legislative intention that that matter of lawful authority is an exception upon which the defendant bears the onus of proof.”

243. Here, s 214A expressly provides that the State bears the onus of proof. Nonetheless, the Court of Criminal Appeal’s approach is illuminating because it suggests that the mere fact that a matter that is included in the description of the offence may not be conclusive.

244. It is true that the provisions of subss 214A(3)–(6) do not, unlike subs (2), expressly provide that the exception be proved by the person charged for an offence under s 214A.

245. I accept that it is arguable that the absence of a provision shifting the onus in subss (3)-(6) represents a textual indication that the legislature had not intended to cast such burden upon the defendant, given that it expressly chose to do so in the case of subs (2). However, the matters raised in the exceptions or proviso in subss (3), (4) and (6) are, in my view, plainly “additional facts of a special kind” to use the words of the Chief Justice in Dowling. This is a strong indicator that the legislature did intend to cast the burden upon a defendant to make good the proviso or exception in subss (3), (4) and (6) although it is arguable that intention may not be divined with respect to subs (5).

246. Whether a person’s conduct was part of industrial action, occurred at their workplace or was done with the consent of some authority is “a matter peculiarly within the knowledge of the defendant” (to use the words of the plurality in Chugg). It is evident that subss (3), (4) and (6) impose a prohibition upon conduct “save in specified circumstances… or with specified qualifications or with the licence or permission of specified authorities” (to use the words of Lawton L.J in R v Edwards [1975] QB 27 at [40], which was cited approvingly in Chugg).

247. Without finally deciding the question, the situation may well be different in relation to the Parliament House and offices of members of Parliament exception in subs (5). It is not knowledge that is peculiarly held by an accused. I prefer to read subs (5) as cutting down the scope of what could constitute a “major facility”. It excludes Parliament House and Members of Parliament offices from ever being covered in the regulations as a “major facility.” Although subs (5), in form, is expressed as an exception, it is more analogous to United Telecasters because it, in substance, operates “by way of definition.”

248. For these reasons, I consider that the better view is that the onus of proving the exceptions in subss (3), (4) and (6) lies with an accused. As United Telecasters makes clear, this is on the balance of probabilities. But the onus of disproving the exception in subs (5) lies with the prosecution.

Subsection 214A(2)

249. Subsection 214A(2) provides a “defence” that the person charged with the offence must prove. The subsection reverses the onus of proof in criminal proceedings which otherwise required a prosecutor to prove all elements beyond reasonable doubt. The effect is that a person charged with an offence has the onus of proving on the balance of probabilities that they had a “reasonable excuse” for their conduct.

250. The operation of the provision may be derived from the judgment of the High Court in Taikato v The Queen (1996) 186 CLR 454 (“Taikato”) with respect to s 545E(2) of the Crimes Act wherein Kirby J stated (at 486) as follows:

“2. The exceptions in s 545E(2) provide relief to a person who would otherwise be guilty of a criminal offence and liable, upon conviction, to lose his or her liberty and/or to suffer a heavy fine. Conventionally, such exceptions will not be given a narrow construction. This is especially so because, whereas in some legislation the onus is cast upon the prosecutor to establish the absence of a lawful purpose, in s 545E(2) the onus is placed on the accused to establish the exception. It is the accused who must excuse or justify the possession of the thing which otherwise establishes the liability for the offence. Whereas the general onus remains on the prosecutor throughout to establish the offence, the accused must ‘satisfy the court’ of the applicability of the suggested exemption. Unless the accused can do so, mere possession is enough to establish the offence.” ^[104]

251. What constitutes a reasonable excuse is not defined in Pt 4AF of the Crimes Act. Although the phrase appears in many statutes, decisions considering other statutes provide little guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.

252. In Taikato, Brennan CJ, Toohey, McHugh and Gummow JJ stated (at 466):

“However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse” in cases coming within s 545E even when it requires the courts to make judgments that are probably better left to the representatives of the people in parliament to make.”

253. The defence in subs (2) invites Courts to “formulate various conditions which disqualify some, but not all, individuals or groups from taking advantage of the “reasonable excuse” protection”. As their Honours explained in Taikato (at 465):

“That means that, under the label "reasonable excuse", the courts will have to make what are effectively political judgments by looking for material differences justifying the distributive operation of the criminal law in a variety of circumstances which have many, sometimes almost identical, similarities with each other.”

254. The defence covers conduct that would be considered “reasonable” by a “hypothetical ordinary member of the community in the position of the person concerned.” ^[105]

255. Within those parameters, the courts will have to make value judgments as to what circumstances entitle a person to engage in conduct that falls within the scope of s 214A of the Crimes Act but deserve to be exempted. Whether the proposed conduct of the plaintiffs would amount to a “reasonable excuse” was not elaborated by the parties and it would not be appropriate to determine that issue in these proceedings. However, the breadth of the reach under s 214A and the reversal of the onus of proof for a “reasonable excuse” are relevant considerations that go to the practical operation of the law, especially as to its propensity to chill political speech, and whether it infringes the implied freedom of political communication.

The Nature of the Burden

256. I will commence by a discussion, at a reasonably high level of generality, of the nature of the burden upon the implied freedom under the impugned law.

257. A starting point is to observe that, protests over environmental issues of the kind illustrated by the evidence in this matter do, as a general proposition, constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends.

258. As earlier explained, by its terms, s 214A(1) imposes a general prohibition on the conduct in relation to a major facility, as defined in subs (7) to mean, inter alia, a “railway station or other public transport facility.” If the conduct has any one of the consequences in subss (1)(a)-(d), the offence is one of general intention.

259. By virtue of the construction of the provision above, the operation and effect of the provision may prohibit or limit political communication protected by the implied freedom because it operates not only with respect to direct interruption to the operation of major facilities (such as conduct involving entry to or remaining on a major facility or blocking of ‘entry’ causing serious disruption or obstruction) in order to promote a political cause, but because it also extends, by its terms, to an assembly of people near a major facility or as the plaintiffs aptly described it, “prototypical peaceful protest activity” where persons attempting to the use the facility may be redirected (and conduct which causes part of the major facility to be closed).

260. Whilst s 214A is not expressly directed at or confined to protests, as was the Workplaces (Protection from Protesters) Act 2014 (Tas) (“Protesters Act”) considered by the High Court in Brown, upon the aforementioned construction of s 214A(1), the words, “remain …near … any part of a major facility if that conduct … causes persons attempting to use the major facility to be redirected”, are plainly directed at such forms of political communication. The legislative intention to do so can also be ascertained from the Second Reading Speech for the Bill. The provisions of subs 214A(1)(c) (so far as they concern partial closure) in that context.

261. The Bill was introduced in response to “recent events” staged to various locations where “illegal protesters participated in activities that cause major disruptions to the New South Wales transportation network.” This is the mischief to which the law was directed. However, there was also recognised in the Second Reading Speech that which is evident in the evidence of the plaintiffs; protesting or public assemblies have historically occurred in public spaces in order to bring about legislative or regulatory change on, inter alia, environmental issues.

262. As was discussed by Gageler J (as his Honour then was) in Brown at [191], the communicative power of such assemblies is a matter of common experience whether that communication occurs because of the generation of images at or about an activity said to affect the environment or because other activities to attract such attention. In this case, for example, persons dressing in costumes such as bumblebees may well attract public attention.

263. The limited scope of the regulation of those public spaces (or Crown land) with respect to public assemblies is, as I will discuss, significant in the assessment of the burden. But the nature of the burden is demonstrated by the legislation directly targeting protest activities. As the evidence in this matter demonstrates such protest activity ranges from the Port Botany protests emphasised by the State to Ms Jacobs’ protest outside Martin Place Station. The impugned provision has a real prospect of impacting all of those chosen methods of political communication which are undertaken, as a means of advocating for, inter alia, legislative change.

264. A case in point is environmental protests near major facilities where issues of pollution or environmental deprivation may arise in the minds of those protesting.

265. In Brown, the High Court proceeded on the basis of the parties agreement that there was a long history of political protests in Australia including protest as to environmental issues in public places and that protests historically have been a means of bringing about political and legislative change on environmental issues and public debate on environmental issues generally, with respect to both with respect to State and Federal politics. ^[106]

266. As earlier mentioned, Ms Kvelde described her attendance at protests near Railway Stations as being directed to community education and engagement. ^[107] Ms Jacobs stated that “[N]on-violent direct action, in my experience, is what gets attention - the media’s, community’s, and the Government's”. She stated that the Railway Stations provide ready access to persons to attend protests to express their views about climate change. ^[108]

267. In 2019, the Sydney Morning Herald reported that a large crowd of students gathered in the CBD to rally against climate change and the action resulted in protesters overflowing from Town Hall to the next block.

268. It may be acknowledged that the Second Reading Speech also refers to limitations in the scope of the law with respect to protests, but, as previously mentioned, those statements cannot be determinative of the operation of the law if the text and context suggest otherwise.

269. As was observed by Gageler J (as his Honour then was) in Brown (at [171]), it would be rare, if an activity answering the description of an opinion or belief in respect of “political, environmental, social, cultural or economic issues” would not amount to “political communication within the prosecution of the implied freedom”.

270. I have earlier discussed the operation of defences or exceptions to s 214A(1). The provisions of subss 214A(2)-(6) ameliorate the effect of s 214A(1) on the implied freedom but leave significant areas of unprotected communications on other matters, which are significant in political terms.

271. The provisions of subss (3), (4) and (5), as previously discussed, are in the nature of excuse, justification or exculpation. They are directed to particular forms of political communication such as employee rights or political communication involving or directed at Parliament House or an office of a member of Parliament. These exceptions are not directed to environmental issues as such which are of concern to the plaintiffs.

272. To those considerations it may be added that the exceptions in subss 214A(3) and (4) provide in circumstances where the onus of proving the exceptions lies with an accused.

273. In like fashion, the burden produced by s 214A, is not eliminated or reduced to the point of insignificance by the exception in subs (6). Whilst s 214A(6) is not confined in its operation to authorisations by the NSW Commissioner of Police, recent experience would suggest this is the primary means (if not the only means) by which consent or authorisation is attained from the NSW Police Force for public assembly.

274. Section 24 of the Summary Offences Act provides as follows:

24 Participation in authorised public assembly

If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

275. The provision suffers from substantial limitations in providing a means of reducing the burden on the implied freedom.

276. First, the provision only operates if the Commissioner does not oppose the public assembly referred to in a Notice of Intention to hold a public assembly (s 23(1)(f) of the Summary Offences Act) or a Court authorises the public assembly (s 26). There is plainly a threshold any proposed assembly is required to cross in order to engage in a public assembly which requires the exercise of a discretion by the Commissioner of Police (or, in what might be considered a more exceptional case, an evaluation or discretion exercised by a Court). The State did not bring evidence as to the incidence of success of Notices or, if granted, what conditions may attach to them.

277. Secondly, the provisions of Part 4 of the Summary Offences Act do not provide for urgency.

278. The exception only applies to anything done or omitted to be done for the purpose only of participating in a public assembly if the assembly is “held substantially in accordance with the particulars furnished” and after giving the requisite notice.

279. Section 23(1)(f) of the Summary Offences Act provides:

23 Authorised public assemblies

(1) For the purposes of this Part, a public assembly is an authorised public assembly if:

(a) notice, in writing, of intention to hold the public assembly, addressed to the Commissioner, has been served on the Commissioner, and

(b) if a form of notice has been prescribed, the notice is in or to the effect of the prescribed form, and

(c) the notice contains the following particulars:

(i) the date on which it is proposed to hold the public assembly,

(ii) if the proposed public assembly is not a procession, a statement specifying the time and place at which it is intended that persons gather to participate in the proposed public assembly,

(iii) if the proposed public assembly is a procession, a statement specifying the time at which it is intended that the procession commence and the proposed route of the procession and, if it is intended that the procession should stop at places along that route for the purpose of enabling persons participating in the procession to be addressed or for any other purpose, a statement specifying those places,

(iv) the purpose for which the proposed public assembly is to be held,

(v) such other particulars as may be prescribed, and

(d) the notice specifies the number of persons who are expected to be participants in the proposed public assembly, and

(e) the notice:

(i) is signed by a person who indicates in the notice that he or she takes responsibility for organising and conducting the proposed public assembly, and

(ii) specifies the address of that person for the service on him or her of any notice for the purposes of this Part (which may include an address for the transmission of facsimiles or the sending of emails to the person), and

(f) the Commissioner has notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly or:

(i) if the notice was served on the Commissioner at least 7 days before the date specified in the notice as the date on which it is proposed to hold the public assembly—the holding of the public assembly is not prohibited by a Court under section 25 (1), or

(ii) if the notice was served on the Commissioner less than 7 days before that date—the holding of the public assembly is authorised by a Court under section 26.

280. Section 26 provides:

26 Authorisation by a Court of a public assembly

If:

(a) a notice referred to in section 23 (1) is served on the Commissioner less than 7 days before the date specified in the notice as the date on which it is proposed to hold the public assembly referred to in the notice, and

(b) the Commissioner has not notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly,

the organiser may apply to a Court for an order authorising the holding of the public assembly.

281. An applicant must provide 7 days’ notice. In the event of less than 7 days’ notice being provided, or the Commissioner indicated that he has no opposition, then the applicant must apply to a Court for authorisation. Thus, the provision does not accommodate spontaneous protests or protests undertaken with urgency.

282. A further limitation of this exception is that, so far as authority is obtained under Pt 4 of the Summary Offences Act, it pertains, firstly, to persons participating in an “unlawful assembly”, (“the first part”) and secondly to the “obstruction of any person, vehicle or vessel in a public place” (“the second part”).

283. As to the first part s 214A is not confined in that manner, as it extends to lawful assemblies protests or demonstrations.

284. As to the second part of the conduct under s 24 there are two possibilities. First, the provision refers to an obstruction which is unlawful such as obstructing traffic (s 6) of the Summary Offences Act or climbing on or jumping from buildings or other structures during the course of protest (s 8A). In that case, the same limitations as to the first part.

285. Secondly, I have contemplated whether the reference to “obstruction” in s 24 of the Summary Offences Act should not be confined to unlawful obstruction, presumably upon the basis that the provision is dealing with political assemblies and the immediate context of the word “obstruction” with the words “an unlawful assembly” in the provision would suggest the word “obstruction” is directed to a wider purpose of exempting an obstruction which does not itself result in the assembly involving an obstruction being unlawful under criminal statutes or at common law. However, the expression “or the obstruction of any person, vehicle or vessel in a public place” is preceded by the words “guilty of an offence relating to” such conduct which suggest the obstruction to which the Legislative is referred is one involving criminal conduct. ^[109]

286. Thus, the provisions of s 214A(6) would not seem to apply in all cases where a protest is situated near a major facility and a person attempting to use the facility is redirected for the purposes of subs 214A(1)(d). This assessment is based upon the earlier construction of the provision and what follows below in considering incremental effect of the impugned law on the implied freedom.

287. Thus, the exemption under s 214A(6) only applies, inter alia, to anything done in accordance with a consent under, inter alia, Pt 4 of the Summary Offences Act and that provision only offers a waiver or exemption for unlawful (criminal) conduct. It follows that subs (6) would offer no redress for otherwise lawful peaceful protests caught by s 214A(1).

288. I turn then to s 214A(2). The earlier discussion of the operation of subs (2) in this judgment makes clear that the defence would not operate to except all conduct involving communication or governmental or political lines. The availability of the defence depends upon a value judgment taking into account whether the circumstances entitled a person to engage in conduct caught by the provision.

289. Further, the implied freedom extends beyond expressive conduct that a “hypothetical ordinary member of the community” may consider to be “reasonable”. ^[110] As McHugh J noted in Levy at 623, the constitutional implication “protects false, unreasoned and emotional communications as well as true, reasoned and detached communications”. “The very purpose of the freedom”, as Hayne J pointed out in Monis, “is to permit the expression of unpopular or minority points of view”. ^[111]

290. Overall, the aforementioned analysis would suggest that the burden in the present case is potentially direct and substantial, although that assessment is primarily concerned with justification.

291. The extent of the burden which may arise is demonstrated by the evidence as to protests over time in and around the Town Hall Station, a prescribed railway station. ^[112] In accordance with my earlier findings, these assemblies constitute protests which were apt to involve protesters remaining near Sydney Town Hall causing train goers and other persons to be redirected from entry to Town Hall Station. It is most likely that such an eventuality arose from the protests at Martin Place and Town Hall Station described by Ms Jacobs and Ms Kvelde in their evidence. So much is also clear from the earlier construction in this judgment of subs 214A(1)(d). As the plaintiffs correctly submitted, those affected by the law include not only those communicating on government and political matters but also the recipients of the communications, such as a peaceful rally against the Iraq war, where dozens of persons were reported to have sought a vantage point on the roof of the entrance to St James Station, another prescribed railway station. ^[113]

Is there an Incremental Effect of the Impugned Law Upon the Implied Freedom?

The Submissions of the State

292. As mentioned, the State’s primary submission with respect to the question of burden was that s 214A does not effectively burden the implied freedom primarily because the conduct it prescribes is otherwise unlawful.

293. Further, the State submitted as follows:

In understanding the effect of a law on the flow of political communication as a whole, it is relevant to consider “what political communication is not affected” and whether the law operates “directly on political communication”: LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490 (LibertyWorks) at [63]-[66] (Kiefel CJ, Keane and Gleeson JJ). A law that is “content neutral” and “viewpoint neutral” and so is not “discriminatory” will impose a lesser burden: LibertyWorks at [177] per Gordon J; see also Clubb at [54]-[55].

“[A]ny burden upon the freedom of political communication must be measured against the valid, existing laws which form a ‘constitutionally valid baseline’”: Ruddick v Commonwealth (2022) 96 ALJR 367 (Ruddick) at [155] (Gordon, Edelman and Gleeson JJ). “The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly restrict”: Farm Transparency at [37] (Kiefel CJ and Keane J); see also at [158] (Gordon J) and [223] (Edelman J).”

294. The State listed a number of extant prohibitions in support of its primary submission in that respect. It is convenient to extract them below:

“a. Section 144G of the Roads Act, which is not the subject of an implied freedom challenge by the Plaintiffs, prohibits similar conduct to s 214A(1) in relation to “major bridges, tunnels and roads”.

b. Section 195(1)(a) of the Crimes Act prohibits the intentional or reckless destruction or damage of property belonging to another.

c. Section 213 of the Crimes Act prohibits intentional conduct without lawful excuse which causes the passage or operation of a locomotive or other rolling stock on a railway to be obstructed.

d. Section 6 of the Summary Offences Act prohibits a person from, without reasonable excuse, wilfully preventing, in any manner, the free passage of a person, vehicle or vessel in a “public place”. A “public place” is defined broadly in s 3 of the Summary Offences Act as a place or a part of premises that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons. A vehicle is defined as including a motor vehicle, a train or other vehicle used on a railway or a caravan or anything else constructed to be drawn by a vehicle or animal.

e. Section 8A(1) of the Summary Offences Act provides that a person who risks the safety of any other person as a consequence of: (a) abseiling, jumping or parachuting from any part of a building or other structure; or (b) climbing down or up or on or otherwise descending (except as referred to in paragraph (a)) or ascending any part of a building or other structure, except by use of the stairs, lifts or other means provided for ascent or descent of it, is guilty of an offence. Section 8A(3) provides that a structure includes a bridge, crane (whether mobile or not) and tower.

f. Rule 125(1) of the Road Rules prohibits a driver, which includes a person in control of a vehicle, from unreasonably obstructing the path of another driver or a pedestrian.

g. Rule 236 of the Road Rules prohibits a pedestrian from causing a traffic hazard by moving into the path of a driver (r 236(1)) or unreasonably obstructing the path of any driver or another pedestrian (r 236(2)).

h. Subject to the limitations in s 200 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), a person whose behaviour or presence in a public place is obstructing another person, persons or traffic is liable to a direction under Pt 14 of the LEPRA, which it is an offence not to comply with.

i. The law of trespass, which is actionable without proof of damage, prohibits a “direct interference, either intentional or negligent, with possession of the land without the plaintiff’s consent or without other lawful authority”: Brown, [383] (Gordon J). While a person who enters land for one or more purposes within an implied licence will not usually be a trespasser even if they have some other purpose that falls outside the scope of the licence, an entrant will be a trespasser if an implied licence is limited to a particular purpose and if the sole purpose of entry is outside that purpose: Roy v O’Neill (2020) 272 CLR 291 at [71]-[72] (Keane and Edelman JJ). Relevantly, a lawful entrant will become a trespasser “if the purpose of their licence is exhausted, if the licence is revoked, or if the person performs acts that are beyond the scope of their licence”: Roy v O’Neill at [74]; see eg Roy v O’Neill at [75]-[76]. As Eichelbaum CJ noted in TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 at 732:

… the concept of an implied licence raises the question and the purposes for which a licence may be implied … Such a licence has been expressed as limited to lawful purposes, but it does not follow that only entry for unlawful purposes will be outside the terms of the licence. Purposes for which it is known or understood that the occupier would not give consent would be outside the ambit of implication.

j. As the Plaintiffs accept (see PS [37]), any licence for a major facility would not extend to conduct having the consequences identified in s 214A(1)(a), (b), (c) or (d). Nor would any implied licence for a major facility extend to most of the conduct identified in the chapeau to s 214, namely climbing, jumping from, trespass on or blocking entry to any part of a major facility: cf PS [25]. In these circumstances all the conduct in the chapeau to s 214A(1) would be a trespass – except for remaining near a major facility – and so unlawful even in the absence of the consequences in (a)-(d).

k. The law of private nuisance prohibits “a material interference, beyond what is reasonable in the circumstances, with the plaintiff’s use or enjoyment of the land or of the plaintiff’s interest in the land”: Brown, [385] (Gordon J). The occupier of land would have a right of action in relation to conduct on that land which interferes with the business activities carried out upon it: see Brown, [385]. With respect to conduct outside that land, “picketing outside a person’s business premises which disrupts the operation of or supplies to that business, in order to compel the business operator to do or not to do what is lawful for that business operator not to do or to do respectively, would support an action for nuisance at common law”: Brown, [386] (Gordon J). The obstruction which effects the beneficial use of the land may be “direct or indirect”: Broderick Motors Pty v Rothe [1986] Aust Torts Reports 80-059 at 68,104.

l. The law of public nuisance prohibits acts or omissions “which materially affect the reasonable comfort and convenience of the life of a class of the public”: Wallace v Powell [2000] NSWSC 406 at [32] (Hodgson CJ in Eq). The “[o]bstruction of a public highway may amount to such a nuisance, depending upon the degree and length of time and reasonableness of the obstruction”: Wallace v Powell at [32]; see also McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at [122]-[125] (Warren CJ, Nettle and Redlich JJA). It might be noted that in Smith v Wilson [1903] 2 IR 45 a plaintiff succeeded in an action for public nuisance where the defendant’s conduct obstructed a public way and forced the plaintiff to take a longer and more circuitous route.”

Principles Bearing Upon the State’s Contentions As To Prohibitions under s 214A Being Otherwise Unlawful

295. The constitutional freedom of political communication was unanimously confirmed by the High Court in Lange (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 560). The Court held that “ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors” (at 560). The Court characterised the nature of the implied freedom, which is a constraint or limitation on laws which impede the freedom to communicate about government or political matters, not a conferral of personal rights on individuals (at 560) (see also Brown at [313] (Gordon J) and [557] (Edelman J)).

296. In Lange, the plaintiff, Mr David Lange (the former Prime Minister of New Zealand), brought a defamation action against the Australian Broadcasting Corporation (“the ABC”) for allegedly broadcasting to the effect that he had been corrupt while in office. The ABC pleaded that the matter complained of was published “(a) pursuant to a freedom guaranteed by the Commonwealth Constitution to publish material: in the course of discussion of government and political matters …” (“the constitutional defence”). The ABC also pleaded the defence of common law qualified privilege, alleging that the matters complained of related to subjects of public interest and political matters (“the qualified privilege defence”).

297. The defendant relied on the decisions of Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 149; [1994] HCA 46 (“Theophanous”) and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45 (“Stephens”) in support of the constitutional defence. The plaintiffs contended that both cases did not have any application to the discussion and further, that both cases were wrongly decided and should be reconsidered by the Court.

298. The Courts in Theophanous and Stephens, in substance, held that there was implied in the Constitution a defence to the publication of defamatory matter relating to government and political matters.

299. The Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) unanimously held that Theophanous and Stephens should be followed; deciding that the long-standing common law principle of defamation infringed on the implied freedom (at 556 and 566).

300. The upshot of this finding, was that the common law must develop in a way to be compatible with the implied freedom (at 556 and 566). In the context of defamation, the common law rights of persons defamed may be diminished by statute but they “cannot be enlarged so as to restrict the freedom required by the Constitution” (at 566).

301. Ultimately, the Court held that the constitutional defence pleaded by the ABC was bad at law. The Court concluded that the common law of defamation was reasonably appropriate and adapted to the protection of reputation having regard to the requirement of freedom of communication about government and political matters required by the Constitution (at 531).

302. The judgment in Lange illustrates that some legal rules, even common law principles of long standing such as defamation, may need to be adjusted to accommodate the implied freedom. ^[114] Following Theophanous, the “development of the common law in Australia cannot run counter to constitutional imperatives.” ^[115]

303. In Brown, proceedings were brought in the original jurisdiction of the High Court challenging the validity of the Protesters Act by Dr Robert Brown and Ms Jessica Hoyt (“the plaintiffs”). ^[116]

304. Forestry Tasmania announced its intention to fell trees in the coupe in the Lapoinya Forest, in accordance with a Forest Practices Plan. Forestry Tasmania was a Forest Manager for the purposes of the Forest Management Act 2013 (Tas) and had the management and control of all land which was described as permanent timber production zone land. The decision attracted public protests.

305. As part of the logging processes, Forestry Tasmania erected signs advising of the closure of roads to all unauthorised vehicles and pedestrian traffic and by suspending chains across roads, a short distance from the signs.

306. On the second occasion that Ms Hoyt attended the forest with other members of an action group known as the Lapoinya community, she was protesting against the logging in the coupe. Upon reaching a certain point within the forest she was instructed by a police officer to stop and she was arrested.

307. Dr Brown entered a road and walked along a section of it with three other persons and was then filmed speaking about environmental issues. The footage included works being undertaken by a bulldozer. When he failed to depart the area that he was situated on, under instruction by a police officer, he was arrested.

308. Section 6(1) of the Protesters Act provided a protester must not enter a “business premises”, if entering or remaining on the premises prevented, hindered or obstructed the carrying out of business activity and the protester knew or ought reasonably to have expected to know that the entry or remaining on the premises was likely to prevent, hinder or obstruct the carrying out of the business activity. It is unnecessary to consider s 6(2) for present purposes.

309. Section 6(3) provided that a protester must not do an act that prevented, hindered or obstructed access, by business occupier in relation to the premises, to an entrance to, or exit from, business premises, or a business access area in relation to business premises, if the protester knew or ought reasonably to have expected to know that the act was likely to prevent, hinder or obstruct such access.

310. Section 8(1) of the Protesters Act was also an offence provision and provided that a person must not remain on a business access area in relation to business premises after having been directed by a police officer under s 11 to leave the business access area or enter on a business access area in relation to business premises within four days after having been directed by a police officer under s 11 to leave the business premises or business access area.

311. Section 11(1) empowered a police officer to direct a person who is on the premises to leave immediately “if the police officer reasonably believes that the person has committed, is committing or is about to commit … a contravention of section 6(1), (2) or (3).” Under s 11(2) or s 11(6) the police officer may issue a direction.

312. As earlier mentioned, the parties in Brown agreed that there was a long history of political protests in Australia including protests concerning environmental issues in spaces accessible to the public and on Crown land. Some protests had involved blocking the entry of machinery to forests and interfering with tree felling activities. It was suggested that the plaintiffs engaged in a protest action of that kind and that the police officer came to a view that the presence of the plaintiffs would have the effect of preventing, injuring or obstructing forest operations. The police officer had thought that Dr Brown and Ms Hoyt were on land which was business premises. Both Ms Hoyt and Dr Brown were charged with an offence under s 8(1).

313. Kiefel CJ, Bell and Keane JJ identified that a Fact Sheet for the Protesters Bill distinguished between protests which are intentionally disruptive of business activity and peaceful protest. The latter was described as a protest that may involve people standing at a distance from, but within sight of, forestry operations holding placards, voicing their protests and being filmed (at [65]).

314. It was emphasised by their Honours that the problem confronting police officers was that it was difficult to define the boundaries of “business premises” and “a business access area” under the Protesters Act (at [67]). Forestry Tasmania might identify, by signs or physical barriers, exclusion areas under its powers under the FMA, but the Protesters Act does not identify the areas which apply as those designated under the FMA (at [68]) The forest operations were not conducted in premises or an enclosure and may not be located at one site. Under the Protesters Act, the primary focus in determining whether the Act applies or not is where the protester were situated (at [73]). As a case in point, Dr Brown was arrested on a reserve to which the respondent to the proceedings, the State of Tasmania, conceded was not caught by the Protesters Act. The charges against him were discontinued.

315. The result of the uncertainty was, according to Kiefel CJ, Bell and Keane JJ in Brown, that “some lawful protests will be prevented or discontinued, and protesters will be deterred from further protesting” because “there is a real likelihood that if they are present on land in the vicinity of the forest operations they may be subjected to a direction to leave the area and all the effects which flow from such a direction, even if there is no basis in law for the direction…” (at [77]).

316. Thus, even though the State in Brown conceded the Protesters Act may burden the implied freedom, but Kiefel CJ, Bell and Keane JJ found that protesters of the kind discussed in that case would be deterred from being present in the vicinity of the forest operations for fear that they may be subject to direction to leave with all the consequences that follow (at [87]). The freedom is burdened, even if the protesters were not on business premises or in business access areas. The police officers who arrested and removed them were unable to correctly determine whether they were on those premises and in that area (at [91]).

317. Kiefel CJ, Bell and Keane JJ then mentioned the respondent's argument that the burden would be slight because in most cases the protesters would not be able to lawfully be present in areas where the forest operations were being carried out. For example, there was no right to carry on or carry out protests on the site of a business activity and the protester would be, in that case, a trespasser, and the activity may amount to a nuisance (at [105] and [107]). I will return to this aspect.

318. Kiefel CJ, Bell and Keane JJ then referred to the judgment in Levy to consider the issue that “unless the common law or a statute gave them a right to enter the area, it might be said that the lack of that right, not the regulations, deny them the opportunity to protest” (at [108.]) However, the question averted to by McHugh J in Levy did not arise in Brown according to their Honours. It was stated (at [109]):

“[109] … As has been seen, the Protesters Act may operate to stifle political communication on the mistaken, albeit reasonable, belief of a police officer as to the effect of protest activity whether or not it involves the presence of protesters on land where they have no right to be and where that question may never be determined by a court. As will be explained later in these reasons, it is in consequence of this overreach of means over ends that the Protesters Act operates more widely than its purpose requires. In this regard, it may be contrasted with the FMA. …”

319. Further, at [115]-[116] Kiefel CJ, Bell and Keane JJ stated:

“[115] … There is nothing in the Protesters Act to suggest that the areas to which it is intended to apply are coextensive with those designated under the FMA as unavailable for public access and use.

[116] It follows that there will be areas of forestry land which will not be the subject of the exercise of the powers of exclusion under the FMA but to which the Protesters Act will apply. It may reasonably be inferred that persons would be able to access these areas in order to effectively voice their protests were it not for the Protesters Act.”

320. Finally, at [118] it was stated:

“[118] It has been explained that the exercise of powers given under the Protesters Act will likely result in persons wrongly being excluded from areas of a forest, their protests being brought to an end, and them being deterred from further protests in the foreseeable future. …”

321. The plurality found that, inter alia, ss 6(1) and (3) and 8(1) and 11(1) impermissibly burdened the implied freedom.

322. Gageler J (as his Honour then was) in Brown also passed upon the judgment of McHugh J in Levy. His Honour approached the question as follows at [183]-[186]:

“[183] … Noting that the implied freedom of political communication does not create rights but merely invalidates laws, and that the implied freedom therefore “gave the protesters no right to enter the hunting area”, his Honour suggested that unless the protesters had a legal right to enter the hunting area “it was the lack of that right, and not the [r]egulations, that destroyed their opportunity to make their political protest”.

[184] Notwithstanding a concession on the part of the defendant that the impugned provisions of the Protesters Act effectively burden freedom of political communication, the qualification McHugh J expressed in Levy looms large in the argument of the defendant and interveners in the present case. The qualification expressed by his Honour therefore requires careful consideration.

[185] His Honour's notation that the implied freedom does not create an affirmative right to engage in political communication is uncontroversial. It was confirmed in McClure v Australian Electoral Commission. It has often since been repeated.

[186] His Honour's addition of the suggestion that the implied freedom may not have been burdened in the absence of the protesters having a legal right to enter the hunting areas needs to be treated with caution. Understood against the background of the observation in Lange that “[u]nder a legal system based on the common law, ‘everybody is free to do anything, subject only to the provisions of the law’”, the point of general significance his Honour can be seen to have been making was that an impugned law cannot have the effect of constraining the ability of persons to engage in a form of political communication if those persons would be prohibited by some other valid law from engaging in that form of political communication in any event. That must ordinarily be so, and that is as far as his Honour's suggestion can be taken. His Honour's suggestion would not accurately reflect the nature of the implied freedom were it treated as a suggestion that political communications protected by the implied freedom are limited to those in which persons have some pre-existing legally enforceable right to engage.”

323. At [188]-[189], his Honour reached the following conclusion:

“[188] The considerations identified in Lange which support the implication of freedom of political communication cannot justify confining its protection to political communications in which persons seeking to communicate have a legally enforceable right to engage. … Accepting that some other laws (including, as the outcome in Lange illustrates, some legal rules of long standing) might themselves need to be adjusted to accommodate to the implied freedom, the impact of any given law on political communication (and in turn on electoral accountability for the exercise of legislative and executive power) lies in the incremental effect of that law on the real-world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice. Therein lies its relevant burden.”

(emphasis added).

“[189] Nothing therefore turns on whether or not a protester has a legally enforceable right to enter or remain on Crown land declared to be permanent timber production zone land. There are, as the special case reveals, approximately 800,000 hectares of permanent timber production zone land in Tasmania. Historically, members of the public have in fact enjoyed access to that land. Continuation of that public access is facilitated by the general statutory obligation of Forestry Tasmania under the Management Act …”

324. Gageler J then discussed the nature and intensity of the burden on political communication imposed by the Protesters Act at [192] and [193]:

“[192] The nature and intensity of the burden imposed on political communication by the impugned provisions of the Protesters Act fall therefore to be considered against a background of historical and continuing public access to permanent timber production zone land, of limited statutory regulation of that public access, and of historical and likely continuing on-site political protests directed to bringing about legislative or regulatory change on environmental issues on Crown land in Tasmania.

[193] The nature of the burden imposed on political communication by the impugned provisions is that the burden can be expected to fall in practice almost exclusively on on-site political protests of that description. Not only are the provisions targeted by the definition of protester to political communication, but they are targeted by the same definition to political communication occurring at particular geographical locations. Given those geographical locations, and given the history of on-site protests in Tasmania, it would be fanciful to think that the impugned provisions are not likely to impact on the chosen method of political communication of those whose advocacy is directed to bringing about legislative or regulatory change on environmental issues and would have little or no impact on political communication by those whose advocacy is directed to other political ends.”

325. In the final analysis, his Honour found that impugned provisions directly and substantially burdened the implied freedom of political communication.

326. Gageler J and Nettle J agreed with the answers to stated questions given by Kiefel CJ, Bell and Keane JJ.

327. Nettle J found, as was emphasised in Levy, the implied freedom of political communication “is a freedom to communicate by lawful means, not a licence to do what is otherwise unlawful … it does not authorise or justify trespass to land or chattels, nuisance, or the besetting of business premises, or negligent conduct causing loss” (at [259]). If the protesters were engaged in such activities, the fact that a provision of the Protesters Act also prohibited the act of protest cannot logically be regarded as burdening the implied freedom.

328. However, Nettle J found that various provisions of the Protesters Act did, in fact, infringe the implied freedom. Even though a protester might not, in fact, prevent, hinder or obstruct forest operations, or access to forest land, a police officer could nevertheless properly form the requisite, reasonable belief under subss 11(1) and (2) that the protester is preventing, hindering or obstructing forest operations or access thereto (at [264]). That is not a unlikely scenario. Thus, the provisions comprise of substantial restriction on the otherwise lawful protest activities (at [269]).

329. Justices Gordon and Edelman were in the minority in Brown. Gordon J considered the impairment provisions created and enforced rules of conduct that overlapped with existing laws that prohibit the same conduct. The impugned provisions prohibited particular methods of political communications which, for all practical purposes, were otherwise unlawful (at [304]). This difficulty was not overcome by observing that the impugned provisions were complicated and drafted in a way that may initially leave a person unsure as to their effect. Thus, Gordon J considered the legal effect and practical operation of the Protesters Act needed to be considered alongside the wider legal framework, including the FMA and the common law.

330. Save for s 8(1)(b) of the Protesters Act, her Honour found (at [357]) that an examination of the wider legal framework demonstrated the conduct that was addressed by the impugned provisions was and remains substantially unlawful and “None of the laws constituting this wider legal framework was challenged as being an impermissible burden on the implied freedom. That framework was and remains a constitutionally valid baseline.”

331. Edelman J observed in Brown at [557], the phrase “burden on freedom” signified that the constitutional implication only constrained legislative power where that power is exercised to impede legal freedom to communicate about government and political matters. If the conduct about which the legislation is construed is “independently unlawful, so that there was no legal freedom to communicate about government or political matters, then there can be no burden on the freedom.”

332. It was stated by Kiefel CJ and Keane J in Farm Transparency at [37]:

“[37] The extent of the burden effected by ss 11 and 12 is not to be assessed by reference to the operation and effect of those provisions alone. The burden effected by the prohibitions in ss 11 and 12 must be assessed by reference to the restraints which the law - understood as the common law, equity, and statute law - already imposes upon a person's ability to publish records of activities obtained surreptitiously and by conduct which amounts to trespass. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly restrict. It is that burden which is to be justified.”

(emphasis added).

333. The implication for the implied freedom of political communication is an implication of freedom under the law of an ordered society, such that any burden upon the freedom of political communication must be measured against the valid, existing laws, which form a constitutionally valid baseline: Ruddick at [155] (Gordon, Edelman and Gleeson JJ). ^[117]

334. In LibertyWorks, Kiefel CJ, Keane and Gleeson JJ stated that it was instructive to observe “what political communication is not affected by the relevant provisions” (at [64]) and whether the provisions of the law operate directly on political communication and are not discriminatory (at [66]).

Incremental Effect of the Impugned Law: Consideration

335. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. Thus, the impugned law cannot have the effect of constraining the ability to engage in a form of political communication, if those persons would be prohibited by other valid laws, from engaging in the political communication in any event. If the valid, existing laws do not render unlawful the conduct proscribed by the impugned law the burden is to be measured in circumstances which the impugned law impinges upon political communication unconstrained by existing laws.

336. None of the laws constituting a wider legal framework, relied upon by the State, were challenged by the plaintiffs as being invalid in and of themselves. ^[118] It is necessary then to consider whether there is such an incremental effect of the impugned law over the valid existing laws relied upon by the State.

337. I will commence with a discussion of subss (1)(c) and (d), when considered in the light of the conduct referred to in the chapeau of remaining near a major facility. What follows is predicated upon my earlier conclusion as to the construction of subs (1)(d) in this context and my rejection of the proposition by the State that subs (1)(d) only operates in the case of an (unlawful) obstruction.

338. The plaintiffs submitted that the existing prohibitions, such as they are, do not extend to legitimate use of public space that causes “mere inconvenience such as redirection of persons or partial closure of a major facility.” That description is apt to capture the circumstances of Ms Jacobs and Ms Kvelde regarding protests at Town Hall and Martin Place Stations, which I have earlier summarised. It may well capture larger protests. I accept for earlier stated reasons that s 214A(1) does criminalise such conduct, but for reasons appearing below, the conduct does not infringe existing laws whether in the common law, equity or statute law. In this respect, I will find that the State has failed to establish that an effective burden is not imposed upon the implied freedom by subs 214A(1)(c) (so far as the partial closure of facilities is concerned) and subs (1)(d) in that respect.

339. My reasons for these conclusions appear below.

340. First, I accept the broad propositions of law regarding protests outlined by the plaintiffs in their written submissions, particularly having regard to my earlier discussion of the common law right to protest or engage in the public assembly (or the principle of legality in that respect):

1. Political communication has long been a legitimate purpose for the use of a road or public place under the common law. Reference was made to the influential chapter on the right of public meetings by Dicey as follows: ^[119]

“A has a right to walk down the High Street or to go on to a common. B has the same right. C, D, and all their friends have the same right to go there also. In other words, A, B, C, and D, and ten thousand such, have a right to hold a public meeting; and as A may say to B that he thinks an Act ought to be passed abolishing the House of Lords, or that the House of Lords are bound to reject any bill modifying the constitution of their House, and as B may make the same remark to any of his friends, the result ensues that A and ten thousand more may hold a public meeting either to support the government or to encourage the resistance of the Peers. Here then you have in substance that right of public meeting for political and other purposes which is constantly treated in foreign countries as a special privilege, to be exercised only subject to careful restrictions.”

2. Reference was also made to the judgment of Latham CJ, Rich and Dixon JJ in Schubert v Lee (1946) 71 CLR 589 (“Schubert”) at 594 which considered a prohibition on obstructing free passage on a road or footpath. ^[120] . Their Honours stated that “If a man deposits a load of stones on a highway he obstructs a highway, even though the members of the public are able to walk around the stones.” ^[121] However, “where the alleged obstruction consists in the physical presence of the defendant at upon the highway, the prohibition of a highway must be reconciled with the reasonable user of the highway by members of the public.” ^[122] Their Honours further observed that although “every user of a highway for the purpose for which a highway is intended may theoretically at least lessen its commodiousness for the use of other members of the public”, “that arises from the nature of things.” ^[123] Their Honours concluded, “what is not permitted is the lessening in a substantial degree of the commodiousness of the use of the highway for legitimate purposes, by using it for purposes other than a highway” ^[124] . In that case, the defendants were liable because their use of the lane for the conduct of betting was not a use for which the highway was intended.

3. Public procession, even one causing inconvenience to others, was not unlawful, including as a public nuisance or infringement of familiar prohibitions on obstructing passage. Reliance in this respect was placed upon the judgment of Field J in Beatty v Gillbanks (1882) 9 QBD 308 at 311, 313 and Burden v Ridler [1911] 1 KB 337 at 339-340 (Lord Alverstone CJ, Pickford and Avory JJ agreeing). Emphasis was placed upon the judgment of Isaacs J in Melbourne Corp v Barry at 197, where his Honour observed that “the right innocently and unaggressively to use the King’s highway in company on occasions that frequently represent political, social, religious or industrial movements or opinions.”

4. The plaintiffs also relied upon the judgment of Lord Denning MR in Hubbard v Pitt [1976] QB 142. His Lordship there held (in dissent) that conduct amounts to a nuisance on a highway if it is unreasonable. His Lordship considered that there is a “right to demonstrate and the right to protest on matters of public concern” and that “[t]hese are rights which it is in the public interest that individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done.” ^[125] His Lordship referred to earlier authorities about a right to assembly and held that: ^[126]

“So also is the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern. As long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic, it is not prohibited … I stress the need for peace and good order. Only too often violence may break out: and then it should be firmly handled and severely punished. But so long as good order is maintained, the right to demonstrate must be preserved.”

5. To similar effect, Lord Irvine LC in Director of Public Prosecutions v Jones [1999] 2 AC 240 at 254-255 acknowledged the “public right of peaceful assembly on the public highway” as a “public place” if the activities are not “an obstruction of the highway unreasonably impeding” passage or otherwise unlawful.

6. The plaintiffs described the time-honoured approach stated by Angel J, sitting in the Court of Appeal of the Northern Territory in Trennery at 7-8 as follows:

“A peaceful demonstration or protest, whether by assembly or procession in a street, is nowadays accepted by members of the community as a safety valve for the community and potentially at least as an agent for change and for the good. An ordinary incident of any assembly or procession through the streets is some inconvenience to others. … Nonetheless peaceable protests are to be tolerated in the recognition of the freedom of others to hold different opinions, to speak, to assemble, and to associate. … It is only the unreasonable use of a highway for the purpose of protest, whether by assembly or procession, which is unlawful … In deciding what is unreasonable the court bears in mind “that freedoms are of different qualities and values and that the higher and more important should not be unduly restricted in favour of lower or less important ones”, and that it would be contrary to the public interest and to the values of free speech, free assembly, free association, tolerance of difference and individual autonomy that those who for whatever reason do not accept the values of protesters should be able too readily to restrict the actions of peaceable protesters in the name of disorderly conduct.” ^[127]

341. However, secondly, any such right may be abrogated by statute and hence closer attention is required to be given to the State’s enumeration of existing laws which are said to constitute the constitutional baseline.

342. In that respect, I agree with the submission advanced by the plaintiffs that the prohibitions referred to in the State’s submissions as extracted (at [294]) do not, either alone or in combination, criminalise the conduct prohibited by s 214A(1) of remaining near any part of a major facility that merely causes persons attempting to use any part of a major facility to be redirected (having regard to the aforementioned construction of those expressions), but does not seriously disrupt or obstruct. Nor do I consider that the identified laws render it an offence to engage in an act that merely causes part of the major facility to be closed for the purposes of subs (1)(c) but does not seriously disrupt or obstruct.

343. The plaintiffs’ submissions amply identify why the laws relied upon by the State in this respect do not criminalise the conduct (or all of the conduct) proscribed by s 214A ^[128] causing the consequences under subs (1)(c) (for a partial closure) and (1)(d). As a general proposition, I agree that the laws relied upon by the State mostly operate to prohibit obstruction conduct and resides and public places in limited circumstances.

344. A more particular examination of those limitations may be described by reference to the list of laws relied upon by the State in this respect as follows (with emphasis given to the distinguishing features):

1. The Roads Act is confined to the proscription of conduct on and from a major bridge, tunnel or road, which causes damage or seriously disrupts or obstructs vehicles or pedestrians, including causing the bridge, tunnel or road or part thereof to be closed, or vehicles to be redirected (see s 144G and paragraph (a) of the State’s written submission). The provision does not concern major facilities as defined in s 214A(7).

2. Under the Road Rules 2014, a driver or pedestrian who unreasonably obstructs the path of another driver or pedestrian is liable to a penalty of up to 20 penalty units ($2200) (Rule 125(1)) (the State’s submissions paragraph (f)).

3. Under the Summary Offences Act, a person who, without reasonable excuse, wilfully prevents the free passage of a person, vehicle or vessel in a public place, is liable for a penalty of up to four penalty units ($440) (see s 6 and State submissions paragraph (d)).

4. The Crimes Act prescribes acts or omissions obstructing the passage or operation of a locomotive or other rolling stock on a Railway “intentionally and without lawful excuse” (the provision carries a penalty of two years imprisonment) (s 213) (State submission paragraph (c)).

5. The reliance of the State upon s 195(1)(a) of the Crimes Act and s 8A(1) of the Summary Offences Act are irrelevant to this consideration as they deal with more serious and different conduct. (I note the penalties under these provisions are respectively five years imprisonment and 10 penalty units ($1100) or imprisonment for 3 years, or both).

6. The provisions of Pt 14 of LEPRA, do not themselves create an offence, but rather, prescribe that a person’s behaviour or presence in a public place if obstructing another person, persons or traffic, is liable to a direction under that Part. It is an offence to not comply with that direction. The provision is subject to the significant limitations in s 200. (A failure to comply with a direction under s 199 carries liability of 2 penalty units ($220)).

345. In each case s 214A is considerably deeper and wider in its operation (as I will later discuss) and reaches its zenith in prohibiting conduct which is not prohibited by existing criminal statute law such as conduct of remaining near any part of a major facility which causes people to be redirected.

346. As to the common law, the existing prohibition wilfully preventing free passage is circumscribed as it requires “knowledge of the impact of the persons action or an intention to prevent free passage”: Fitzgerald v Montoya (1989) 16 NSWLR 164 at 169-171 (Rogers AJA, Kirby P and Clark JA agreeing). There is no equivalent qualification in s 214A(1).

347. I turn then, in this context, to trespass, private nuisance and public nuisance.

348. The State’s submissions as to these torts, as reflected in paragraphs (i), (k) and (l) of the written submission extracted at [294] of this judgment, may be accepted, for the purposes of stating the relevant legal principles.

349. Noting the description of the legal principles in the State’s submission for the establishment of those torts, it is plain that the circumstances described by Ms Jacobs and Ms Kvelde could not constitute a trespass or private nuisance.

350. As to public nuisance, Gordon J described the scope of the common law in that respect as follows in Brown at 389:

“[389] The Protesters Act is primarily concerned with conduct on business premises or a business access area in relation to business premises. The facts and circumstances considered in Grocon are instructive. The authorities relied upon by the primary judge concerned public nuisance, which in Tasmania is an offence under s 141 of the Criminal Code. It was observed in Grocon that an obstruction can be physical or can come in the form of intimidation and need not be total; and for something to be an obstruction, it would generally not need to be “tested” to see if it could be safely overcome. It was not doubted that the blocking by a third party of even one of multiple means of access to a building site could amount to preventing “free” access, especially when the entry point blocked was a normal entry point to the site, and there was no need for an attempt or a request to gain access to a site in order to establish an obstruction. Indeed, as the primary judge observed, “free” access may be prevented, hindered or interfered with if access is made more difficult by an obstruction, even if persons might still be able to access the site.”

351. The circumstances of the protests at Martin Place Station and Town Hall Station do not, in all likelihood, suggest any infringement in the form of public nuisance. There is no suggestion that the protesters wholly blocked, even one entrance. It was not the case that persons were prevented, hindered or interfered with from access, or access being necessarily and significantly made more difficult by obstruction. The facility was certainly not closed (or even partially closed) in the evidence of Ms Jacobs and Ms Kvelde. Indeed, Ms Jacobs indicated that the protesters had endeavoured not to obstruct the entrances.

352. Whether some larger protests of the kind described as occurring near Town Hall Station may have been found to constitute a public nuisance would depend on the facts and circumstances and the nature of any obstruction that occurred, with respect to those gatherings. As Needham J stated in discharging the injunction for nuisance in Meriton Units Pty Ltd v Rule (Unreported, NSWSC, Needham J, 18 April 1983 at 7):

“I have no doubt that the crowds gathering outside the plaintiffs' property expressing opposition (and judging from the pamphlets distributed) in strong terms to the lawful activities of the plaintiffs must create an annoyance to the plaintiffs. … However, much as this type of behaviour may be deprecated by other members of society, the common law rights of freedom of expression and of association are treasured democratic rights. Unless some law is broken by the demonstrators or protestors they have a right to express their opinions in such a manner, and the courts will protect those rights.”

353. It is useful to further illustrate the issues arising with respect to (d), when examined in the light of the conduct in the chapeau of “remaining near” a major facility, by providing an example closely aligned to Ms Jacobs evidence of the protest near Martin Place Station.

354. A group of protesters were concerned about environmental issues. They are situated in a public place near, but not on, the steps entering Martin Place Train Station at Elizabeth Street, Sydney.

355. It may be then appropriate to approach the example in one of two scenarios. Firstly, persons walked around the protesters in order to enter one of the stairways near Elizabeth Street providing access to or egress from the Martin Place Railway Station. In my view, for the reasons I have given, it is most likely that the provisions of subs 214A(1)(d) would be engaged. Section 214A(1)(b) is not, however, engaged. I note, in that respect, my earlier conclusions regarding the offence requiring proof of a general intention.

356. There is no infringement of existing laws in this respect.

357. Two provisions of the State’s list of existing laws are potentially to be engaged. The first is Pt 14 of LEPRA. A police officer can give a direction to one or more of the protesters, on the basis that their behaviour or presence is “obstructing” another person or persons, or traffic (see s 197(1)). It would be an offence not to comply with the direction. However, the giving of a direction is a matter of discretion for a police officer. Section 200 of LEPRA places significant restrictions on when a police officer may give a direction for an apparently genuine protest, a procession or an organised assembly. The protest is peaceful and bona fide. Unless the police officer gave a valid direction, and the protester failed to comply with that direction, the protester committed no offence by virtue of this provision.

358. The second is s 6 of the Summary Offences Act. It is quite improbable in this example, that the protester would commit this offence. It would be necessary for the prosecution to establish the mens rea element, that the protester wilfully prevented the free passage. Returning to Ms Jacobs’ evidence it was the intention of the protesters that they did not block the entrances. That is not a surprising endeavour for peaceful protests.

359. There is no damage or destruction of property. The common law offence of obstruction is not engaged essentially for reasons earlier given in this judgment.

360. There is no public nuisance. The entrances were not blocked and the entry point remained the normal entry point for persons travelling to and from the train station or one in close proximity. There was a minimal difficulty with access. Nonetheless, the fellow protesters were able to communicate to the public their views about the endangerment of the environment.

361. In my view, the same conclusion would follow if a person seeking to use one entrance of the Martin Place Station were unable to do so because of the protesters and were redirected to another entrance situated a short distance away.

362. What is clear from this discussion is that, in this respect, the impugned law does impact on political communication as stated by Gageler J (as his Honour then was) in Brown at [188]. The impugned law has an incremental effect on the real world ability of a person or persons to have others receive communications which are capable of bearing on electoral choice. What is required is “nothing more complicated than that the effect of the law is to prohibit, or to put some limitation on, the making of, or the content of political communications": Tajjour at [145]. This is a central aspect of the burden upon the implied freedom in this case.

363. Based upon the evidence in this matter and having regard to the aforementioned construction of subs 214A(1)(d) (with respect to the conduct in the chapeau of remaining near a facility), the impugned provision criminalises conduct which has no other effect than causing persons attempting to use the facility to be redirected. The same conclusion may be reached with respect to partial closure of, say, a Railway Station entrance where persons attempting to use the facility may easily access other entrances for the purposes of subs (1)(c). That conduct may cause inconvenience, but it is not otherwise unlawful. The burden in that case is direct and substantial.

364. A further question arises from the second of the earlier mentioned contentions advanced by the State. On this approach, the analysis proceeds upon an assumption that the conduct engaged in constituted an obstruction of some kind which, by its nature, resulted in a more serious hinderance or impediment.

365. The difficulty with the State’s submission in this respect is that, as earlier described, it is predicated upon the obstruction being conduct which is ‘unlawful’ in the common law, equity or statute law. But the circumstances underpinning this premise were not explained. What follows next demonstrates why it is not safe to form a conclusion as to whether the implied freedom is burdened by subs 214A(1)(d) based on the State’s alternative formulation in this respect. It is simply not explained with any precision how the “obstruction” in the State’s illustration may be unlawful either generally or in the circumstances in the present case. It may, however, be noted that, a serious “disruption or obstruction” may be put aside in this respect as no reliance was placed by the State in this second scenario upon circumstances attracting subs (1)(b). So too may reliance on subs 214A(1)(d) as it is concerned only with consequences and not conduct itself although it should be acknowledged that the conduct in the chapeau of remaining “near” a major facility may comprehend the act of so remaining involving an obstruction of some kind while the protesters remain on the major facility.

366. The State’s contention may be tested in the following way. Of the existing prohibitions relevant to a protest outside of a Railway Station, the prohibition on wilfully preventing free passage would seem to have the broadest operation but, as I have mentioned, even in that case, it is circumscribed. There is a requirement for knowledge of the impact of the person’s action or an intention to prevent free passage. The evidence of the plaintiffs as to the protests at the Martin Place and Town Hall Railway Stations would not seem to establish those legal elements. There is no equivalent qualification in s 214A(1) as demonstrated by my earlier discussion that the provision was an offence of general intent. No other basis has been demonstrated to show why, if some form of (undefined) obstruction by protesters standing near resulted in the redirection of persons around those precincts (aside from the consequences in subs (1)(b)), the conduct was unlawful.

367. Even if it were found that some conduct in remaining near a major facility and causing persons to be redirected might be unlawful in common law or statute law, that theoretical position is not a universal one. This is particularly so when the evidence demonstrates protest actions of that character which would not be prohibited by existing law. That conclusion is sufficient to demonstrate that an incremental burden upon the implied freedom exists and forms a basis for an affirmative answer to the first question.

368. I turn then to a different aspect of s 214A, namely, the conduct described in the chapeau of entering and remaining on a major facility. The State contended in paragraphs (i) and (j) of their written submissions (extracted at [294] above), any licence to enter a major facility would not extend to conduct having the consequences identified in subss 214A(1)(a), (b), (c) or (d). Further, it was submitted, any implied licence from a major facility would not extend to most of the conduct identified in the chapeau, such as climbing, jumping from, trespass on, or blocking entry to any part of a major facility. Thus, all the conduct in the chapeau, save for remaining near a major facility would be a trespass and unlawful.

369. As I will discuss below, I accept that submission in so far as conduct of “climb, jump from, otherwise trespass on (as that expression is earlier defined in this judgment) or block entry” is concerned with respect to the consequences in subss (1)(a)-(d) (noting the earlier discussion of the meaning of seriously disrupts or obstructs).

370. It is difficult to conceive how the conduct in the chapeau of climbing, jumping, trespass on or blocking entry (if the blocking occurs on the facility) to any part of the major facility would retain or maintain any implied licence. As the State pointed out, a lawful entrant will become a trespasser if the person performs acts that are beyond the scope of their licence, as the entry would be for unlawful purposes outside the terms of the licence. This is amplified when it is understood the conduct has caused the consequences described in subss 214A(1)(a)–(c). The conclusion that any implied licence would be revoked or forfeited as beyond the scope of the licence is a fortiori.

371. Further, a significant part of the conduct in the chapeau is caught by s 8A(1) of the Summary Offences Act, which provides that a person who risks the safety of any other person as a consequence of abseiling, jumping or parachuting from any part of a building, or climbing down or up or on or otherwise descending or ascending any part of a building or structure, contravenes the provision, except where conduct is by means of stairs, lifts or other means provided for ascent or descent. Section 8A(3) provides that a structure includes a bridge, crane or tower.

372. The plaintiffs submitted that, by definition, the offence of risking safety as a consequence of abseiling or similar acts under s 8A of the Summary Offences Act were limited to conduct that risked the safety of members of the public. However, the provision does not operate with respect to risks to members of the public but rather to the safety of “any other person.” That includes emergency personnel involved in dealing with the demonstrations. If entry to a major facility is blocked (or the facility is wholly closed) then it would seem subs 214A(1)(d) has no relevance. It is evident that the Port Botany incident earlier described in this judgment, as discussed in the Second Reading Speech, has that very potential.

373. However, s 214A also has the effect then of criminalising protests or demonstrations (involving political communication) in all circumstances where those involved in the public assembly enter or remain on the major facility such as a Railway Station and cause persons attempting to use the Station to be redirected. I do not consider all such conduct would result in a revocation of an implied licence (so as to result in a trespass) and is not a private nuisance.

374. By reliance on Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45 at 71-72 (Keane and Edelman JJ), the State contended that, whilst the person who entered land for one or more purposes within an implied licence will not usually be a trespasser, even if they have some other purpose that falls outside the scope of the licence, an entrant will be a trespasser if an implied licence is limited to a particular purpose, and if the sole purpose of entry is outside the scope of that licence.

375. However, it follows that a person, including a protester, may conceivably enter a facility under an implied licence and thus not trespass. If the conduct engaged in merely consisted of persons being redirected, this would not constitute, in my view, an injury to a person which would negate the implied licence: Roy at [13] (Kiefel CJ), [70] (Keane and Edelman JJ). Similarly, as to private nuisance, a mere redirection without serious disruption or obstruction is not a material interference with the use or enjoyment of a major facility for the owner of the facility.

376. That conduct (as opposed to the mere presence at the major facility) would not be by consent or authority of a public authority for the purposes of s 214A(6) or excepted under subss (3)-(5).

377. Accordingly, there is an incremental effect of subs 214A(1)(d) (vis-a-vis entry to and remaining on a major facility) on the ability of those persons (or assemblies by some persons) to engage in political communication (such as environmental issues). I do not consider any different conclusion should be reached with respect to a partial closure of a facility under subs (1)(c). There is a burden to the implied freedom.

378. I turn then to any of the conduct in the chapeau which has the effect of causing damage to a major facility for the purposes of subs (1)(a).

379. The State relied upon the provisions of s 195(1) of the Crimes Act, which prohibits the intentional or reckless destruction or damage of property belonging to another, to submit that subs 214A(1)(a) would not effect a burden on the implied freedom. The law represented a constitutional baseline in which the existing laws criminalised the conduct referred to in subs (1)(a).

380. The plaintiffs submitted that in order to prove that offence the prosecution needed to demonstrate foresight of the physical consequences of the act: CB v Director of Public Prosecutions NSW (2013) A Crim R 522 at [26] (Adamson J) and that, as such an element was not required in s 214A, the difference in proof resulted in the impugned law having an incremental effect. I do not accept that submission. In my view, it is highly likely the conduct in subs (1)(a) (when considered in the light of any conduct in the chapeau) would, in fact, be prohibited by s 195(1) or the burden would be entirely insubstantial. My reasons for that conclusion may be shorted stated.

381. First, it is most unlikely that the defence would have any meaningful operation with respect to damage resulting from the type of conduct described in the chapeau of climbing, jumping or blocking entry (or, in circumstances such as the Port Botany and Spit Bridge protests). It seems very likely that the requisite foresight might be demonstrated.

382. Secondly, even putting aside the conduct described in the chapeau, the resultant damage would surely constitute the revocation of any implied licence and the protesters remaining on the facility would be, therefore, engaged in a tortious conduct. Thus, even though it may be possible to demonstrate the existence of a defence (in a prosecution under s 195(1) with respect to a protester entering or remaining on a major facility within the meaning of those expressions in the chapeau), the burden would not effectively arise as the conduct would be caught by an existing law, namely, a trespass.

383. I turn finally to subs 214A(1)(b). Having regard to my previous discussion of the meaning of the expression “seriously disrupts or obstructs”, in my view, there is no incremental effect of the impugned law on political communication. This is because the conduct could in all likelihood be caught by the common law offence of obstruction and, in any event, would constitute a public nuisance.

Burden Not Inconsequential

384. The State referred to a passage from the judgment of Crennan, Kiefel and Bell JJ in Monis (at [343]) to contend, in the alternative, that any burden on the implied freedom in this matter is “slight” and indeed “so slight as to be inconsequential.” The submission was intended to convey that in those circumstances the first question would be answered in the negative. Having regard to the authorities on this issue that proposition needs to be approached with considerable caution.

385. It is true that their Honours in Monis did accept that an effect on political communication that is so slight so as to be “inconsequential” may not “require an affirmative answer to the first limb inquiry” but rejected that such a position applied in that case, even if the effects of the provision in question were hard to quantify (at [343]). However, their Honours also stated, “once a real effect upon the content of political communication is seen likely, attention must be directed to the second limb of the test.”

386. In the same matter, Hayne J rejected, inter alia, a contention that a “little” burden is consistent with the implied freedom. It had been advanced in Monis that, notwithstanding the terms of the impugned laws, there would remain a free flow of information and that the laws did not pose a realistic threat to the constitutionally prescribed system and the implied freedom. Hayne J described this as a false premise (at [117]) based upon the notion that the operation of the freedom and its boundaries are to be determined by reference to whether the constitutional system of government will still function (at [117]). The relevant premise was that there was a freedom of political communication, “not any more general concept of the constitutional system of government, let alone some conception of how that system could or should work, or work effectively” (at [118]).

387. His Honour stated that whether the law burdens that freedom is not to be determined by some attempted survey of whether there is “sufficient communication on government or political matters either to make the constitutional system of government work, or to make it work satisfactorily” (at [119]).

388. In Tajjour, Kiefel J (as her Honour then was) Crennan and Bell JJ returned to Monis and stated at [105]-[106] as follows:

“[105] Submissions in the matters presently under consideration suggest some misunderstanding about the first limb and about what is necessary to satisfy the requirement that the freedom is “effectively burdened” by the terms, operation or effect of s 93X. Both New South Wales and Victoria referred to the following statement from the joint reasons in Monis v The Queen:

“It may be accepted that an effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb inquiry.”

(emphasis added)

It was put by New South Wales that, if s 93X did not restrict the freedom very often, then a negative answer might be given to the enquiry in the first limb of the Lange test. If that were the case, it would not be necessary to consider whether the conditions in the second limb were satisfied.

[106] The submission proceeds upon a misreading of the statement in Monis. Read with what follows in the same passage, it is plain that the joint reasons were saying that it was only an effect which would not be regarded as a real effect that would not qualify as a burden. It was not suggested that a qualitative assessment of the degree of the restriction effected by a legislative provision was appropriate at the stage of the first limb. Immediately after the statement referred to above, the joint reasons in Monis continued:

“[B]ut it cannot be suggested that s 471.12 falls within this category, even if its likely effect is hard to quantify. Once a real effect upon the content of political communication is seen as likely, attention must be directed to the second limb of the test. That is because the evident purpose of Lange is to require a justification for a burden placed upon the freedom. This is not to say that the level of the restriction or burden which is imposed is not relevant. Lange itself shows that it is; but it is a question to be addressed in connection with consideration of the second limb of the Lange test.”

(emphasis added; footnote omitted).”

Further emphasis also added.

389. Reference should be also made to the observations of Gageler J (as his Honour then was) in Tajjour at [145] as follows:

“The first step in the analysis is to ask whether the law, in its legal or practical operation, effectively burdens communication on governmental or political matter. The inquiry is into the character of the law assessed and expressed by reference to its tendency to burden communication of that kind. The test of effective burden is qualitative not quantitative. That is the import of the recent statement that “[t]he identification of the extent of the burden imposed … is not relevant to this first inquiry”. To confine constitutional protection to a law which operates to place some “general” constraint on communication on governmental or political matter - in the apparently volumetric sense in which New South Wales and some of the interveners would employ that term - would be inimical to the nature of the freedom to be protected, which exists to ensure that even the smallest minority is not, without justification, denied by law an ability to be heard in the political process. That minority, as the cases illustrate, might be as small as those who seek to engage in non-verbal protests in a hunting area during restricted hours in a hunting season, or those who seek to express political views to named individuals by means of offensive communications sent through the post.”

390. Nettle J observed in Brown that, a careful identification of the burden upon the implied freedom is “the foundation for any posterior analysis of its justification” (at [237]).

391. Nettle J noted that a law is to be found to have an effective burden on the implied freedom “if it at all prohibits or limits political communication, unless perhaps the prohibition or limitation is so slight, as to have no real effect” (at [237]). In these respects, it is important to also bear in mind that a law that prohibits political communication “to any extent” will generally be found to “impose an effective burden on the implied freedom”: Banerji at [29] (Kiefel CJ, Bell, Keane and Nettle JJ). It is sufficient for a law to require justification that it effects any burden on the freedom. The extent of that burden, “assumes importance in the latter process of justification” (Farm Transparency at [26]) (Kiefel CJ and Keane J). This does not mean the first step in the analysis is perfunctory: McCloy at [127] (Gageler J); at [237] (Nettle J). The first step is critical, because if a law does not impose a meaningful restriction on political communication, the supervising role of the Courts is not engaged. If it does, the role of the Courts is engaged to consider the justification for that restriction, (Gageler J at [127]).

The Position of the Parties

392. The State advanced six propositions in support of its contention that the burden on the implied freedom was so slight as to be inconsequential as follows:

1. The constitutionally valid baseline denies the breadth of the conduct that the plaintiffs say is protected by the implied freedom, including conduct directly interrupting the operations of the major facility to draw attention to a public cause. The only possible lawful conduct captured by s 214A is conduct near a major facility.

2. The question of whether a law imposes a burden on the implied freedom is to be determined by the laws affect on political communication as a whole. It is not to be concerned with, for example, climate change protests.

3. The impugned provision regulates political communication entirely incidentally to the regulation of certain conduct where that conduct has prescribed consequences. Hence, it does not discriminate as to the nature of those communications.

4. The impugned provision leaves “plenty of ways” for persons to engage in peaceful assembly and the peaceful right to protest provided it does not have one of the consequences in subs (1)(a)-(d).

5. The defence in subs (2) and the exceptions in subss (3)-(6) limit any burden imposed by the impugned provision. By virtue of subs (6), s 214A does not prohibit any conduct where the consent authority such as from TfNSW, the NSW Police Force or other public authority has been obtained.

6. As previously discussed, the State contended that the validity of s 214A, is not to be determined by reference to “distorting possibilities.” Thus, whilst the prescription of Town Hall Railway Station means that there is at least a theoretical possibility that subs 214A(1)(d) could be contravened by conduct occurring in relation to a protest at Town Hall, the provision does not direct itself specifically to Town Hall (as opposed to Town Hall Railway Station) and subs (d) only prescribes the conduct specified in the chapeau where that conduct causes persons attempting to use the Railway Station to be redirected.

7. Again, by reference to earlier submissions, it was contended that there is no evidence that protests at Town Hall cause persons attempting to use Town Hall Railway Station to be redirected and the plaintiffs’ case involves, therefore, speculation (for example, the use of the language “would be apt”). The plaintiffs’ Town Hall hypothetical is starkly different to the conduct in evidence in the State’s case vis-à-vis the protests at the Spit Bridge and Port Botany. The plaintiffs had recognised that the Attorney-General had repeatedly stated in the Second Reading Speech that there was an ability for persons to protest and assemble at Town Hall.

393. The plaintiffs’ submissions in reply were as follows:

1. The contentions that the only lawful conduct captured by the impugned provision was conduct near a major facility; that the regulation of political communication was entirely incidental to the regulation of certain conduct; and, that there remained plenty of ways to engage in peaceful protest without prohibition of the impugned provision were misconceived.

2. The implied freedom is not only a protection against laws that place a general constraint on communication on governmental and political matters in some “volumetric sense”, but rather exist to ensure that, even the smallest minority is not, without justification, denied by law an ability to be heard in the political process. This includes non-verbal protests in a hunting area as was discussed in Levy.

3. Reliance on the statement in Monis to the effect that political communication which is so slight as to be inconsequential may not require an affirmative answer to the first question is misplaced, because the alternative case for the State proceeds upon the basis that there is an effective burden upon the implied freedom thereby satisfying the first question. That alone is sufficient to require justification for the law.

4. The lawful conduct captured by the provision is not confined to conduct “near” a major facility, but at least includes conduct by a lawful entrant onto a major facility which causes persons to be redirected or which causes part of the facility to be closed.

5. Further, the regulation of political communication is not entirely incidental to the purpose of the law as a law was made in response to political activities. It is not open to the State to deal with the question of burden by pointing out that the protesters may make their points by some other means as the effect of the law is to prevent them from putting their message in the way proscribed by the law which, the evidence reveals, would have the greatest impact on public opinion.

6. It is beside the point that an instrumentality of the State may give its consent or authority to conduct. As earlier mentioned, and as was emphasised in the Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [31] (Gleeson CJ and Crennan J) and Liberty Works at [96] (Gageler J (as his Honour then was)), the common law tradition sets its face against the idea that freedom of political communication lies in the gift of the Government after the dismantling of laws for licencing the press in the 17th century.

7. The State accepted that there is a theoretical possibility that subs 214A(1)(d) could be contravened by conduct occurring in relation to a protest at the Town Hall but meets that argument by suggesting there is no evidence that protests at Town Hall cause persons attempting to use Town Hall Railway Station to be redirected. The plaintiffs’ invitation to reject that submission by reference to the evidence of Ms Kvelde is, in my view, correct based on the earlier analysis in this judgment. Further, the plaintiffs contend that the likelihood of persons being redirected by virtue of protests could be readily inferred from photographs in evidence depicting persons involved in various protests.

8. Once effective burden is recognised, it is the State which bears the onus of proving any facts relied upon to justify the burden, including alleging the insubstantiality of the burden, and the State has failed to do so.

Consideration: Burden Consequential and Substantial

394. I have taken time to summarise the arguments of the plaintiffs in some detail in this respect, as in my view, they are a powerful rejoinder to the contention of the State and may be accepted, in and of themselves, as a proper basis for establishing that the effective burden as I have found it (and for the reasons I have found it) is not so slight as to be inconsequential.

395. There are, however, other considerations which point against the acceptance of the State’s contentions in this respect.

396. As Tajjour makes clear at [106], the correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment.

397. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms. In my view, the nature and effect of the burden as discussed earlier in this judgment and, in particular, in the adoption of the plaintiff’s submissions in this respect amply demonstrate, on the basis of these tests, that there is an effective burden.

398. I would add two further considerations.

399. First, in Brown, Kiefel CJ, Bell and Keane JJ discussed the practical difficulty in identifying the relevant business area was that some lawful protests will be deterred (at [77]).

400. In Brown, the charges against the plaintiffs were dropped before the proceedings were pursued, however their Honours maintained that the difficulty in defining the boundaries of the “business access area” under the Protesters Act created an uncertainty in which “some lawful protests will be prevented or discontinued, and protesters will be deterred from further protesting” because “there is a real likelihood that if they are present on land in the vicinity of the forest operations they may be subjected to a direction to leave the area and all the effects which flow from such a direction, even if there is no basis in law for the direction…”.

401. This is analogous to the facts of this case, where the plaintiffs, Ms Kvelde and Ms Jacobs, are yet to breach the impugned provisions but because of the uncertainty created by the operation of s 214A, they are hesitant to engage in activities which could put them at risk of breaching the provision (particularly given any bail conditions they are or were subject to). Similarly, the notion of a person being nearby a major facility and persons attempting to use the facilities being redirected raises issues of interpretation (and the lawfulness of conduct) which is akin to issues of uncertainty created by the Protesters Act and the delineation of what constituted a business access area. ^[129] In this way, like in Brown, the freedom of the plaintiffs is burdened before any potential breach the impugned law arises.

402. The second consideration is the substantial deterrent or chilling effect resulting from the increased penalties introduced by s 214A.

403. It must be noted that, in Brown, Nettle J observed (at [259]) that the imposition of a penalty greatly in excess of penalties that might otherwise have been imposed under existing laws “does not mean that a burden is thereby imposed on the implied freedom of political communications.” This finding was based upon the presumption that the implied freedom was concerned with burdens on political communication, not burdens on communicators such that what is relevant is the restraint of political communication by prohibition of proscribed conduct and not penalties imposed on persons contravening that prohibition (at [259]).

404. However, despite the respondent in Brown conceding that the Protesters Act may burden the implied freedom (as opposed to an effect on the protesters), it would appear his Honour was addressing those remarks to whether there was a burden on the implied freedom simpliciter and not whether the burden was inconsequential (which issue had not arisen as such). Reference should also be made to the judgment of Gordon J in Brown where her Honour stated: “increased penalties presents the question about the limitations that the implied freedom imposes on legislative power – it does not provide the answer” (at [305]). However, those observations were followed by a finding that the impugned provisions were directed to “unlawful means of protest”, that is, actively contrary to existing law.

405. In the judgment of Kiefel CJ, Bell and Keane JJ in Brown it was observed that the possibility that a protester might be liable to a substantial penalty should not be “overlooked” (at [87]).

406. It appears to me that it is open to consider any increased penalties imposed by s 214A upon existing laws in the circumstances of this case in order to assess whether the burden is not insubstantial.

407. The State’s case proceeded upon the alternative basis that a burden had been demonstrated but nonetheless the burden was too inconsequential to warrant a conclusion that there was an interference with the implied freedom. In other words, it was argued the burden was so limited in its scope that, in effect, there was not an infringement upon the implied freedom. However, this aspect of the State’s case does not, therefore, concern whether there is a burden as such.

408. I turn then to consider this second factor.

409. There are some categories of existing laws relied upon in this respect which have no effect because the penalties are equal to or greater than those found under s 214A. The following are examples of such provisions:

1. Section 195(1)(a) of the Crimes Act relates to the intentional or reckless destroying or damaging of property and carries a penalty of 5 years imprisonment.

2. Section 213 of the Crimes Act carries a penalty of 2 years imprisonment, the same penalty as the impugned provision.

3. Road Regulation s 144G(1), carries a penalty of 200 penalty units or imprisonment for 2 years, or both (the same penalty as the impugned provision s 214A).

410. However, other laws relied upon by the State imposed significantly less penalties or deterrents than the impugned provision. There are two categories in this respect.

411. The first category consists of criminal statutes having a bearing upon protest activities as follows:

1. Section 6 of the Summary Offences Act carries a penalty of 4 units ($440). This offence is analogous to the impugned provision, with a dramatically lower penalty.

2. Section 8A(1) of the Summary Offences Act carries a penalty of 10 units ($1100) or 3 months imprisonment, or both. Earlier in this judgment I have found that this offence criminalises conduct of the kind found in the chapeau to s 214A.

3. Rules 125(1) and 236(1) and (2) of the Road Rules all carry a penalty of 20 penalty units ($2200). These are analogous provisions, with significantly lower penalties.

412. The second category, concerns common law or equity. Apart from the possibility of the penal consequences of an injunction being issued and contravened (which, of course, first requires the issuing of an injunction ^[130] ), the prospect of penal consequences arising from the impugned provision (with a very wide scope of operation), offers a substantially greater deterrent effect than damages.

413. As a practical matter, that increased deterrent effect may arise whether or not protesters are prosecuted or subject to an action for damages.

414. This analysis assists, in my view, in identifying whether, in qualitative terms, the burden has a real and practical effect on the implied freedom.

Conclusion: Effective Burden by the Impugned Law on the Implied Freedom

415. In the circumstances, I have concluded that the provisions of s 214A burden the implied freedom in so far as the impugned law proscribes conduct of entering, remaining on or near a major facility which causes the partial closure of major facilities and/or persons attempting to use the major facility to be redirected. Thus, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom. The final question must be answered in the affirmative.

LEGITIMACY OF PURPOSE

416. Wheresoever the provisions of s 214A effectively burden the implied freedom, the next question is whether the purpose of the law is legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government: Coleman at [92] (McHugh J); Brown at [104] (Kiefel CJ, Bell and Keane JJ). The third question, as earlier posed, is not reached unless the purpose of the provision in question is legitimate: McCloy at [31] (French CJ, Kiefel, Bell and Keane JJ).

417. The identification of the purpose of the impugned law is to be arrived at by ordinary processes of construction: Brown at [96] (Kiefel CJ, Bell and Keane JJ); Unions NSW at [50] (Kiefel CJ, Gageler J (as his Honour then was), Gordon, Gleeson and Jagot JJ) and Clubb at [257] (Nettle J).

418. The State contended that the purpose of s 214A of the Crimes Act was to “deter certain conduct which caused damage to major facilities, seriously disrupts or obstructs persons attempting to use major facilities, causes major facilities or parts of major facilities to be closed or causes persons attempting to use major facilities to be redirected.” It was submitted that that purpose is plainly legitimate and does not impede the functioning of the constitutionally prescribed system of representative and responsible government.

419. However, in the context of offence provisions, such as the subject provision in this matter, “the question of purpose is rarely answered by reference only to the words of the provision, which commonly provide the elements of the offence and no more”: Monis at [317] (Crennan, Kiefel and Bell JJ). As Kiefel CJ and Keane J stated in Farm Transparency at [34], it is necessary to distinguish between the effect of an impugned provision and stating its purpose. ^[131] Rather, it is necessary to consider the context of the provision, including its “historical background”: Monis at [317].

420. The plaintiffs observed that the State’s submission amounted to no more than the purpose of s 214A being to deter the conduct that the section proscribes by its terms. I agree with that characterisation of the State’s submission. If that form of circular analysis were permitted, then the consideration of the second question could be entirely perfunctory as any provision would be suitable in the sense of being capable of realising its purpose of deterring the proscribed conduct.

421. A legitimate purpose is one which is compatible with the system of representative government provided for by the Constitution, such that the purpose does not impede the functioning of that system and all that it entails. Further, the means chosen to achieve the statutory object must be compatible with that system: McCloy at [31] (French CJ, Kiefel, Bell and Keane JJ).

422. Not every end conducive to the public interest is a legitimate purpose for a law burdening the implied freedom which is “an indispensable incident of the constitutionally prescribed system of government”: Monis at [54], [102]-[103], [119]-[120], [143] (Hayne J). The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable “to the exercise of political sovereignty by the people of the Commonwealth”: Brown at [88] (Kiefel CJ, Bell and Keane JJ).

423. The plaintiffs contended that the mischief which the provisions of s 214A were designed to address was a “perceived lack of effective deterrence to unlawful conduct causing damage or disruption to major facilities ...”

424. The State submitted that the purpose of the law was to increase deterrents to such conduct causing damage or serious disruption to such facilities. It was submitted that the purpose was not to criminalise conduct “merely causing inconvenience to particular individuals.”

425. The State contended in reply that the plaintiffs’ characterisation of the purpose of s 214A(1) was unduly narrow and averted, in that respect, to two principal considerations:

1. The reliance by the plaintiffs upon the Long Title to the Amendment Act and the heading to s 214A must be understood as including the types of disruption identified in subss 214A(1)(c) and (d) as well as damage and disruption.

2. A distinction drawn by the plaintiffs between conduct affecting major facilities and conduct affecting individuals is inconsistent with the terms of subs 214A(1)(b) which is expressly concerned with conduct affecting persons attempting to use major facilities and the Second Reading Speech, which made repeated reference to protecting the rights of members of the public not to be obstructed in public places.

426. The Attorney-General, in the Second Reading speech, also emphasised that “the Government will not stand by as the few seek to disrupt and dispossess the rights of many.” ^[132]

427. In any event, it was submitted by the State that conduct that causes persons attempting to use a major facility to be redirected, such as conduct that leads to road diversions and its subsequent delay, is plainly capable of disruption to the major facility itself.

Consideration: Legitimate Purpose

428. There was no dispute that recourse can be had, in resolving the question of the purpose of the legislative provision to the Long Title of the Amendment Act, even though the title is not part of the Act itself: R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [39] (Kiefel CJ and Keane J); [155] (Nettle and Gordon JJ); [162] (Edelman J). Further, the purpose of s 214A may be identified from the face of the Amendment Act, understood in its context.

429. The Long Title to the Amendment Act described the offences created as being “for certain behaviour that causes damage or disruption to major roads or major public facilities.” The object of the “damage or disruption” within the mischief of the Amendment Act was the “major roads or major facilities” per se. I agree with the plaintiffs that the contention by the State that the reference to “disruption” in the Long Title again must be understood as including the type of disruption identified in subss 214A(1)(c) and (d) focuses too much on the words of the offence provision itself as being determinative of purpose. Further, whilst deterrence of “disruption” or “obstruction”, and, in particular, serious disruption and obstruction, may be a legitimate purpose for a law that burdens freedom of political communication, the provisions of subs (1)(d) concerning redirection cannot, I have found, be equated to those concepts in s 214A. Redirection may well constitute no more than an inconvenience to members of the community which is an ordinary incidence of a public assembly or peaceful protest (see Trenerry above) and, as the plaintiffs put it, “an ordinary incident of societal life.”

430. It does not follow that causing persons to be redirected necessarily derives from unlawful obstructive or disruptive conduct or, without fully repeating my earlier expressed views, that subs (1)(d) is concerned with conduct constituting the “act of obstructing or disrupting” as such. Conduct which merely causes persons to be redirected is not a form of ‘disruption’ or obstruction in the sense that deterring it may be a legitimate purpose for a law that burdens freedom of political communication.

431. There is some merit in the contentions by the State that the drawing of a distinction by the plaintiffs between conduct affecting major facilities and conduct affecting individuals may be too simplistic. The purpose of s 214A of the Crimes Act, as described in the Long Title and the heading of the provision (and as reflected in subs (1)(b)) extends beyond deterring “behaviour that causes damage” to “major public facilities”. However, as submitted by the plaintiffs, the purpose of the provision only extends to “behaviour that causes… disruption” to those facilities which includes seriously disrupting or obstructing persons “attempting to use” the facilities.

432. As to serious obstructions or disruptions, the State correctly emphasised the disruptions by Fireproof Australia on 22 February and 14 March 2022 and Blockade Australia on 22 and 26 March 2022. In that respect, and more generally, it should be observed that the protection of public safety and individual safety are well recognised legitimate ends: Levy at 597 (Brennan CJ); 608 (Dawson J); 614-615 (Toohey and Gummow JJ); 620 (Gaudron J); 627 (McHugh J) and 647 (Kirby J) see also Clubb at [120] and [122] (Kiefel CJ, Bell and Keane JJ); [190] (Gageler J (as his Honour then was)) and Nettle J at [258]. As I have earlier found, the protests at Port Botany threaten the safety of members of the public, including emergency service workers.

433. It might also be observed that, as Gageler J (as his Honour then was) said in Brown at [212]-[213], there can be no question that the protection of businesses from conduct that seriously interferes with the carrying out of business activity, or access to business premises is a purpose which is compatible with the maintenance of the constitutionally prescribed system of government.

434. The purpose of the impugned law does not, in my view, extend, however, to behaviour that merely causes inconvenience to persons as a result of them being redirected by a protest or public assembly near a major facility which does not constitute unlawful disruptive or obstructive conduct. No lesser conclusion is available with respect to conduct near a major facility causing a partial closure of the facility.

435. This conclusion is reinforced by reference to the Second Reading Speech for the Amendment Act. For convenience, I repeat a passage of the Second Reading Speech earlier extracted in this judgment: ^[133]

“It really is not a case of criminalising matters that are already lawful, but rather making sure that the criminal law and the Roads legislation have effective deterrence to prevent the sorts of protest that so grievously interrupt the lives of many and cause economic and community chaos.”

436. Overall, I consider the plaintiffs to be correct to submit that the mischief of s 214A of the Crimes Act may be identified as a perceived lack of effective deterrents to unlawful conduct causing damage or disruption to major facilities (as part of the economy and community). Further, the purpose of the law may be identified as being to increase deterrents to such conduct causing damage or serious disruption or obstruction to facilities and hence, to the community generally. The purpose does not extend to the criminalisation of conduct merely causing inconvenience to particular individuals who, for example, were redirected by protesters situated near a major facility. In this sense, the purpose of s 214A is legitimate.

437. As a purpose of the law is, in these respects, legitimate, the ultimate question (the third question) must be addressed, namely, whether the law is reasonably appropriate and adapted to serve that legitimate object.

ABSENCE OF PROPORTIONATE JUSTIFICATION

438. The third question involves a structured proportionality analysis to determine whether the restriction which the impugned provision imposes on the implied freedom is justified: Clubb at [5]

439. In Burton (at [55]), Kirk JA found that an ongoing majority of the High Court have continued to adopt a structured proportionality test.

440. As his Honour’s analysis is, with respect, illuminating as to the overall operation of the structured proportionality test, I set out in full the relevant aspects of the judgment as follows at [15]-[19]:

“[15] Like many constitutional requirements in Australia and elsewhere, the freedom is not absolute. It may be curtailed by laws which are directed to achieving competing objectives. Since the first recognition of the implied freedom, the High Court has recognised the need to allow for some such infringement of the freedom: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 142-144, 150-151, 169, 217-218 and 234-235. That has resulted in the need to articulate some test or guide for what types of infringement are permissible. An ongoing majority of the High Court has adopted the “structured proportionality” test to fulfil this need: see McCloy v New South Wales (2015) 257 CLR 178 at [2] per French CJ, Kiefel, Bell and Keane JJ; and, most recently, Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655; [2022] HCA 23 at [29] per Kiefel CJ and Keane J, [250] per Edelman J, [269] per Steward J, [271] per Gleeson J.

[16] The Lange test, as understood to incorporate structured proportionality, involves addressing the following questions:

“(1) Does the impugned law effectively burden the freedom in its terms, operation or effect? If not, the inquiry ends.

(2) If so, is the purpose of the law legitimate, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative government? If the purpose is not legitimate, the measure is invalid. If it is legitimate, it is necessary to address the next question.

(3) Can the burden on the freedom imposed by the law be characterised as justifiable? That involves testing the law by way of a structured proportionality analysis, which raises the following issues:

(a) Is the law suitable to achievement of the purpose, in the sense of having a rational connection to that purpose?

(b) Is the burden on the freedom necessary, in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom?

(c) Is the law adequate in its balance, that is to say, not unduly burdensome on the freedom taking account of the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom?”

[17] The reasons for adopting a structured proportionality approach were discussed in an illuminating way by Kiefel CJ and Keane J in Palmer v Western Australia (2021) 95 ALJR 229; [2021] HCA 5 at [54]-[56], in the context of applying that approach to s 92 of the Constitution. As that discussion recognises, structured proportionality is a tool adopted to assist in testing whether the relevant constitutional guarantee is impermissibly infringed by a law, that is to say, whether or not any infringement is justified. It is not the only tool that could have been adopted. It is an approach meant to assist legislators, parties and judges to assess the issues that arise when testing a law, and in so doing to promote transparency of judicial reasoning.

[18] Applying the test is not a purely mechanical exercise, and a clear focus on the constitutional guarantee at issue should be retained. That that is so is reinforced by the fact that often a particular aspect of a challenge to or justification for a law can be expressed in different and overlapping ways. For example, a finding that a law is not rationally directed to achieving the identified legitimate end may suggest that in fact the purpose of the law should be characterised in a different way, such that in truth the purpose of the law was not legitimate. Further, often a point critiquing the law can be raised at more than one level of the structured proportionality analysis, as the discussion below relating to s 105 shows.

[19] In assessing the justifiability of any infringement on the constitutionally protected freedom it is necessary to identify the nature and extent of the burden. The freedom is not a personal right. For that reason the question of the burden imposed on the constitutional freedom is to be assessed by reference to the burden imposed on the protected freedom as a whole, rather than by reference to individual cases: eg Unions NSW (No 1) at [30], [36], [119] and [166]. That being said, evidence of the operation of the impugned law in individual cases “may provide useful examples of the statute's practical effect, and therefore of the burden the statute may have on the freedom”: Brown v Tasmania (2017) 261 CLR 328 at [90] per Kiefel CJ, Bell and Keane JJ.”

441. Nonetheless, it is important to emphasise some of the fundamental judgments of the High Court in this respect.

442. In McCloy, principles applicable to the third question were discussed as follows: (at [2B(3)])

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the inquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable – as having a rational connection to the purpose of the provision;

necessary – in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance – a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question will be “no” and the measure will exceed the implied limitation on legislative power.”

443. In Banerji, Kiefel CJ, Bell, Keane and Nettle J described the proportionality test in the following way (at [32], [33], [35] and [38]):

“[32] A law may be regarded as reasonably appropriate and adapted or proportionate to the achievement of a legitimate purpose consistent with the system of representative and responsible government if the law is suitable, necessary and adequate in its balance.

[33] A law is suitable in that sense if it exhibits a rational connection to its purpose, and a law exhibits such a connection if the means for which it provides are capable of realising that purpose.

…

[35] Where, as here, a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution and it is suitable for the achievement of that purpose in the sense described, such a law is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom…

…

[38] If a law presents as suitable and necessary in the senses described, it is regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom…”

444. Further, in Clubb, Kiefel CJ, Bell and Keane JJ described the proportionality analysis in the third step as follows at [6]:

“[6] The third step of the McCloy test is assisted by a proportionality analysis which asks whether the impugned law is "suitable", in the sense that it has a rational connection to the purpose of the law, and "necessary", in the sense that there is no obvious and compelling alternative, reasonably practical, means of achieving the same purpose which has a less burdensome effect on the implied freedom. If both these questions are answered in the affirmative, the question is then whether the challenged law is "adequate in its balance". This last criterion requires a judgment, consistently with the limits of the judicial function, as to the balance between the importance of the purpose served by the law and the extent of the restriction it imposes on the implied freedom.”

445. As to the question of onus, in Unions NSW 2023 at [31], the Court made the following observation:

“[31] It was also accepted that the polity imposing the burden on political communication bears the persuasive onus of establishing that justification. That is, at least in a practical sense, it is for the State defending the validity of the impugned provisions to justify the burden. The Court must be satisfied of the existence of facts on which the State's justification for the burden depends. That requirement was determinative in Unions [No 2].”

446. In Farm Transparency at [249], Edelman J observed that different views have been expressed in the High Court concerning the party who bears the onus either of establishing a law’s lack of proportionality or justifying a law as proportionate. His Honour expressed the view that, since the party supporting the law is likely to be the party with the most ready access to proof of the anticipated legal and practical effect of a law, the better view is that it is that party who must justify the burden once it is established (referring in that respect to McCloy at [24] (French CJ, Kiefel, Bell and Keane JJ): see also Brown [131] (Kiefel CJ, Bell and Keane JJ). With respect, I shall proceed upon that basis.

447. If the law does not meet the criteria in the third test, then the answer to the third question will be no. The law will contravene the implied freedom and will thereby be invalid.

Lack of Suitability

448. A law is suitable if it has a rational connection to its purpose. A law exhibits such a connection if the means for which it provides are capable of realising that purpose: Banerji at [33].

449. It is unclear on the authorities whether the test of capability might be conditioned by a requirement that there needs to exist a real, substantial or direct connection to the purpose. The judgment of the plurality in Brown has a bearing on this question.

450. As earlier discussed, s 8(1)(b) of the Protesters Act provided that it is an offence for a person who had received a direction to re-enter within 4 days. The plurality held that s 8(1)(b) was not rationally connected to the purpose of protecting forestry businesses from damage and disruption from protesters. This was because the provision deterred a person from being in a business access area, even though they might not present a threat of damage or disruption: Brown at [101] and [135] (Kiefel CJ, Bell and Keane JJ).

451. Thus, at [134] – [136],the plurality in Brown stated the following:

[134] The prohibitions in s 6 clearly enough reflect the purpose of the Protesters Act. The fact that protesters are targeted is explained by the history of protests which provided a catalyst for the Act. The powers of direction, removal and arrest and the offences created may generally be seen as preventing harms to forest operations occurring and deterring protesters from engaging in protest activities which may have those effects.

[135] Section 8(1)(b) cannot be said to share the purpose of the Protesters Act. It deters a person being in any business access area on pain of arrest or penalty, even though they may not present any threat of damage or disruption and may not reasonably be considered to contravene s 6(1), (2) or (3). The inference to be drawn is that it is directed solely to the purpose of deterring protesters. Accordingly, it fails the test of suitability.

[136] The same conclusion may be reached with respect to s 11(7) and (8), which effect a blanket exclusion of a whole group of persons from an area by a single direction of a police officer, even when the police officer could not conceivably have formed any view about whether each person is about to contravene the Protesters Act. So understood, the only purpose of these provisions must be to bring a protest to an end and deter further protests, regardless of whether damage or disruption is foreseeable.

452. This may suggest the test of capability would require a real or sufficient connection with the purpose of the impugned law.

453. However, it is arguable that individuals who had previously been suspected of damaging or disrupting businesses in Brown were likely to cause damage or disruption on subsequent occasions. Therefore, deterring their entry had a rational connection to (and is capable of) protecting businesses: Nettle J at [281] in Brown.

454. On balance, I do not consider that, on the present state of the law, the test is any more demanding than Banerji, namely, the law is simply capable of realising the purpose of the law. The test is, therefore, less demanding than that which I have postulated was a possible view expressed by the plurality in Brown.

455. The State submitted:

1. Imposing further liability to criminal sanctions, such as a greater maximum penalty, over existing prescriptions is capable of deterring conduct which causes, inter alia, parts of major facilities to be closed or causes persons attempting to use major facilities to be redirected.

2. The plaintiff’s contention that subs 214A(1)(d) does not have a rational connection to the purpose of the provision relies upon an unduly narrow characterisation of the purpose of the impugned provision. Further, if conduct that causes persons attempting to use a major facility to be such that there occurs traffic diversions and delay, then a law proscribing such conduct must have a rational connection to the purpose of the impugned law of preventing disruption to major facilities. That illustration was said to involve a redirection.

456. It is convenient to initially repeat some earlier findings in this judgment before turning to a closer examination of these arguments. The earlier findings are as follows:

1. Section 214A is not restricted to the proscription of conduct that is unlawful insofar as it proscribes conduct constituting entry to or remaining on or near a major facility which has the consequence of partially closing a major facility or causing persons attempting to use the major facility to be redirected.

2. The plaintiffs’ characterisation of the purpose of the impugned provision has been, in substance, accepted in my earlier discussion of “legitimate purpose”. In any event, the conduct which the State employs to illustrate its point is, most likely, conduct which falls within subs 214A(1)(b).

3. Section 214A is capable of realising the purpose of deterring conduct causing damage or disruption (and obstruction) to major facilities by prohibiting the conduct having the consequences in subss (1)(a)-(c) (in the latter category with respect to full closure).

4. As earlier discussed, subss (1)(a)-(d) each concern discrete consequence or effects. Subsection (1)(d) has an intended operation beyond subss (1)(a)-(c). It is distinct from conduct which results in serious disruption or obstruction. The subsection concerns conduct resulting in a redirection.

5. It is not necessary for the proof of an offence under subs 214A(1)(d) with respect to conduct of remaining near a major facility for there to be a serious obstruction or disruption, or for there to exist an obstruction which is proscribed by existing laws. As previously mentioned, the existence of an obstruction or disruption is not an element of the offence. Nor is it necessary to establish as a requirement for making out the offence under subs 214A(1)(d). A person may be redirected because the person has experienced an obstruction of some kind from protesters remaining near a major facility but that is not invariably the case. The consequence in subs (1)(d) may have no impact on the operation of the major facility (or result in any damage to the facility).

6. The proscription of conduct consisting of protesters remaining peacefully near a major facility and causing those persons attempting to use the facility to be redirected will, most likely, capture pro-typical peaceful protests which are otherwise lawful.

457. It appears to me that some parallels may be drawn with the judgment of Kiefel CJ, Bell and Keane JJ in Brown in this respect. By reference to Coleman at [91] and Tajjour at [60] and [146], ^[134] their Honour’s opined that the ultimate question whether a legislative measure can be justified as “reasonably appropriate and adapted, or proportionate, cannot be answered without determining its operation and effect”: Brown at [150]. The inquiry was as to the impugned legislation’s operation and “practical effect.”

458. Here, the provisions of subss (1)(a)-(c) (for full closure) may be seen as serving the purpose of preventing the harms of damage to major facilities and “serious obstruction and disruption” and deterring protesters from engaging in protest activities which may have those effects.

459. The more difficult question is whether the conduct involving protesters remaining near a major facility and causing a partial closure of a major facility or persons attempting to use any part of the major facility being redirected is capable of preventing serious disruption.

460. As previously discussed, that conduct, so described, may have no impact on a major facility or the conduct may result in a mere inconvenience to some people attempting to use a major facility without serious obstruction or disruption. The resolution of the issue here is made more difficult because of the plaintiffs’ evidence supporting those conclusions and the State’s evidence as to the suitability of prohibitions of the kind found in subs 214A(1)(c) (as to partial closure) and subs 214A(1)(d) is slender. The extrinsic materials do little to support a finding of a rational connection in this respect.

461. However, upon the aforementioned statement of principles as to suitability, and in particular, the concept of ‘capability’. I have come to the view that proscribing conduct that leads to partial closure or redirection (for the purposes of subss (1)(c) and (d) respectively) is capable of preventing serious disruption. For example, protesters situated near a Railway Station causing a partial closure of a Railway Station may, in some particular circumstances, cause disruption of a more serious kind to the operation of the Railway Station. Similarly, trucks entering a factory or worksite might be redirected to other entrances in the face of a protest or public assembly in such a manner as to seriously disrupt the working of a factory. In both cases, the impugned law has a rational connection to the purpose of deterring disruption.

462. These circumstances might well be remote from the prototypical protests undertaken by the plaintiffs, for example, near Martin Place and Town Hall Railway Stations and represent only a small minority of cases, but nonetheless the impugned laws are capable of realising the purpose of the law with respect to disruptions.

463. Overall, I accept the submission advanced by senior counsel for the State that it has demonstrated that the prohibitions under subss 214A(1)(a)-(d) are suitable for the legitimate purpose.

Lack of Necessity

464. Where, as is here, a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution and it is suitable for the achievement of that purpose (within the meaning of that expression), the impugned law will not be regarded as lacking in necessity unless “there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly less burden on the implied freedom”: Banerji at [35]. The availability of other measures which are just as practicable to achieve a statute's purpose and which are less restrictive on the freedom may result in invalidity: Brown at [131] (Kiefel CJ, Bell and Keane JJ).

465. In Clubb at [267] and [264], Nettle J stated the following with regard to expressing caution about the Court not roaming into the area of policy:

“[267] In Brown, I confined the test of necessity to the determination of whether there are such obvious and compelling alternatives of significantly lesser burden on the implied freedom of political communication as to imply that the impugned law was enacted for an ulterior purpose inconsistent with the constitutionally prescribed system of representative and responsible government. I did so because the Court has recognised that what is necessary to achieve a given legislative purpose must be, to a large extent, within the purview of Parliament and, therefore, that the ascertainment of what is reasonably appropriate and adapted to a legitimate purpose is not a prescription to engage in the assessment of the relative merits of competing legislative models. To engage in such an exercise would risk passing beyond the border of judicial power into the province of the legislature.

…

[269]   … the test of necessity is not a prescription to engage in the assessment of the relative merits of competing legislative models. Legislation should not be adjudged unnecessary unless it is clear that Parliament's selection lies beyond the range of what could reasonably be regarded as necessary to achieve the legitimate purpose for which the law was enacted or unless the circumstances and state of evidence are such as to afford the court an insufficient basis to conclude whether the degree of burden is necessary.”

466. Edelman J also discusses this issue at [407] as follows:

“[407] A clear and principled approach is required in order to distinguish between the decision in Brown v Tasmania, upon which Mr Preston relied heavily, and the outcome in the Preston appeal. Clarity and principle are needed to ensure that the implied freedom of political communication does not become an unlicensed vehicle for a court to remodel public policy by engaging in “an assessment of the relative merits of competing legislative models”. At best, without a reasoning process requiring precision of thought and expression in the application of the implied freedom of political communication, the result could be a “codeless myriad of precedent, [t]hat wilderness of single instances”, a direction against which this Court has “from its establishment resolutely set its face.””

467. Further, at [476]-[480], his Honour stated:

“[476] The second stage of proportionality testing is commonly described as “necessity”, but necessity is used here in a loose sense. The question at the second stage is whether there were “alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom”.

[477] The strength of a reasonableness standard will always depend upon the context in which the standard is being imposed. Here, the context of “reasonably practicable” means of achieving, to the same degree, the legislative objects is that the implied freedom of political communication is limited not merely to matters that will secure the effective operation of the constitutional system of representative and responsible government, but to matters that are also necessary for that operation.

[478] It is also necessary for an effective operation of the constitutional system of representative and responsible government for Parliament to be able to make choices about the best policies to pursue for the implementation of legislation. Parliament is generally in a better position than the courts to assess whether alternative means that have a less restrictive effect on the freedom might not achieve the legislative purpose as significantly or effectively. As O'Regan J and Cameron A-J powerfully expressed this point in the Constitutional Court of South Africa, “[w]hen a [c]ourt seeks to attribute weight to the factor of ‘less restrictive means’ it should take care to avoid a result that annihilates the range of choice available to the Legislature”. This has as much resonance in our constitutional context. Hence, in assessing whether the means adopted was reasonably necessary, it is necessary to ask whether an alternative is “obvious and compelling”.

[479] There are two dimensions involved when considering whether an alternative means of achieving the same object was obvious and compelling. The first is whether the alternative means could reasonably have been expected to have imposed a significantly lesser burden upon the implied freedom of political communication. The second is whether the alternative means could achieve Parliament's purpose to the same or a similar extent. A law will only fail the stage of reasonable necessity if there are alternative means that could reasonably have been expected to have imposed a significantly lesser burden upon the freedom and yet achieved Parliament's purpose to the same or a similar extent.

[480] A comparison of the expected burdens upon the implied freedom between the chosen means and the alternative means will require assessing the likelihood and expected magnitude of the burden upon the freedom of political communication imposed by the means chosen by Parliament compared with the alternative postulated means. The likelihood and expected magnitude of the burden can be assessed by reference to the “depth” and “width” of the burden. A burden will be deeper, in the sense of more intensely focused upon the conduct it captures, the more that the law: (i) targets political communication or communication that is closely associated with political communication; (ii) impairs communication of the message of one side of a debate more than the other; and (iii) punishes or sanctions the conduct. And a burden will be wider, in the sense of capturing more conduct, the less that the restriction on political communication effected by the law is constrained, including by constraints of time, location, or subject matter.”

468. I turn then to the respective arguments of the parties as to this second stage of analysis. The plaintiffs essentially advanced three propositions in support of the Court finding that there exists other means of achieving the legitimate end with a lesser or no burden on the implied freedom such that there exists, to vary the phraseology of the test slightly, a clear or obvious alternative.

469. The submissions by the plaintiffs were as follows:

1. It was clear from the Second Reading Speech that the State was concerned with only increasing penalties with respect to conduct which was already unlawful under existing provisions of the criminal law or under the constraints imposed by the common law including as to the torts of trespass and private and public nuisance. If the concern was one of increasing the deterrent effect of existing laws, the maximum penalties under existing laws could have been increased without enacting a new provision, having a wider operation, as well as an “extreme penalty.”

2. If the criminal law was not sufficiently broad, by itself, an alternative would have been to create an offence of engaging in unlawful conduct, that causes damage or serious disruption to major facilities where unlawful conduct is defined to include tortious conduct such as trespass or nuisance.

3. Another available and compelling alternative would have been to specify other locations of political significance, either by a generic description or by name. Thus, it was suggested that, in the light of the historical use of the Sydney Town Hall for protests, that location is one area that may be included by this alternative approach. This would have significantly reduced the burden on the freedom by not prescribing conduct on or near Town Hall Station involved in an assembly outside the Town Hall. The State has not adduced any evidence that this measure would have been less practicable.

4. As to the first two alternative means, it was submitted by the plaintiffs that each of the alternatives were available and obvious at the time of the Amendment Act, particularly given the references to the unlawful conduct in the Second Reading Speech. It was also submitted that each would have resulted in a significantly lesser burden on the implied freedom but not, for example criminalising protesting activities involving nothing more than remaining near a prescribed railway station where that causes persons to be redirected. It was also submitted that the alternatives were compelling in that they would have eliminated the burden without criminalising any conduct involving political communication that was not already unlawful.

5. As to the third alternative, it was submitted that that the third alternative is compelling and obvious is demonstrated by the exceptions. Subsection 5 accepts conduct in relation to, inter alia, Parliament House, in the light of the proximity between the parliament house and Martin Place Station. The provision seems to have been directed, in part, to protests outside the Parliament House involving conduct on or near that Railway Station, which has been prescribed as a major facility.

470. In the State’s response, it was submitted that the three alternatives proffered by the plaintiffs do not meet the criteria under this limb to demonstrate that there is an obvious or compelling alternative or reasonably practicable means for achieving the same purpose which has a less restrictive effect on the freedom. The State dealt with each of the alternatives proposed by the plaintiffs, in turn, as follows:

1. The first alternative merely increases the maximum penalty for extant prescriptions, even where the conduct does not involve major facilities. It was submitted, therefore, that it is difficult to see how this would have a less restrictive effect on freedom.

2. The submission advanced by the plaintiffs in favour of an alternative creating a new offence really only creates a difference from the existing provision by not deterring conduct which causes persons attempting to use major facilities to be redirected. However, the State contended that this was, in fact, a significant difference and would not necessarily achieve the same purpose as s 214A. The conduct prescribed by s 214A, in the State’s submission, was already unlawful “as it stands.”

3. The third alternative is not capable of “fulfilling the purpose as the means employed by the impugned provision qualitatively, and probability-wise”: Tajjour at [114]. It would, by definition, potentially expose major facilities such as Town Hall Railway Station to the consequences sought to be avoided by s 214A(1). The State also noted that, in enacting s 214A, the Parliament was aware of, and concerned about, the statement by Blockade Australia, calling on protesters to converge on Sydney on June 2022 “to blockade the streets of Australia’s most important political and economic centre and cause disruption that cannot be ignored.” The protest was said to be coordinated by meetings in the Sydney CBD so as to create mass disruptive action.

471. The plaintiffs’ re-joinder as to the State’s submission on the first alternative effectively contended that the Parliament may simply tailor legislative action appropriately, by increasing the maximum penalty only where conduct occurs in relation to a major facility.

472. As to the second alternative, the plaintiffs’ submitted in reply as follows:

“The State then submits that a new offence of engaging in unlawful conduct that causes damage or serious disruption would not deter conduct causing persons to be redirected, which would be “a significant difference” and “not necessarily achieve the same purpose as s 214A”: DS [68(b)]. This a most revealing submission. It recognises that conduct that merely causes persons to be redirected is not unlawful under an extant prohibition, contrary to the State’s primary contention (cf [7] above). And the suggestion that this would “not necessarily achieve the same purpose” presupposes that the purpose of the section extends to deterring conduct that does not seriously disrupt or obstruct use of a major facility but merely causes persons to be redirected. Similarly, proscribed conduct under s 214A which merely causes partial closure of a major facility is not unlawful under an extant provision and the purpose of the section does not extend to deterring such conduct that does not seriously disrupt or obstruct use of the major facility.”

473. As to the third alternative, the plaintiffs contended that the State’s response undercuts the State’s contention that the provision was not directed to protests at Town Hall and that there was no evidence that such protests cause redirection. Further, the State had not led any evidence as to any adverse consequences for Town Hall Station of a protest at Town Hall.

474. In my view, the first alternative means proposed by the plaintiffs contains an invitation for the Court to embark upon a choice about the best policies to pursue in the implementation of legislation and, in doing so, encourages an impermissible analysis. It will invite the Court to speculate or decide what maximum penalty is the appropriate one. Maximum penalties, as explained in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 (French CJ, Hayne, Crennan, Kiefel and Bell, JJ) at [104] define the boundaries of the jurisdiction of the Courts as well as serving as yardstick for the penalty for various forms of offending. In the absence of a compelling clear case, it is fraught with danger for the Court to decide a question that is quintessentially for the legislature.

475. In any event, I agree with the State’s submission that it is difficult to see how this proposal would result in a less restrictive effect on the implied freedom.

476. There is also substance in the State’s submission that the incorporation of other places of political significance in s 214A(5) would not seem to be capable of fulfilling the purpose of s 214A “as the means employed by the impugned provision, “quantitatively, qualitatively or probability-wise””: Tajjour at [114] (Crennan, Kiefel and Bell JJ). ^[135] There may be an exposure to the consequences in subss (1)(a)-(c) which are sought to be avoiding the legislation.

477. However, the second alternative proposed by the plaintiffs does have substance.

478. In Clubb, Edelman J (at [479]) refers to two dimensions being involved when considering whether alternative means of achieving the same object was obvious and compelling. ^[136] The first is whether the alternative means could reasonably have been expected to have imposed a significantly lesser burden upon the implied freedom. On the conclusions reached in this judgment the answer must be in the affirmative. Again, referring to Edelman J’s analysis, albeit with respect to a factually distinct scenario, the burden imposed by the prohibition on peaceful protests undertaken near major facilities with mere inconvenience caused by redirection is “deep.” ^[137] The impugned law targets protests that are closely associated with political communication. It imposes additional constraints on one side of the debate. It does so by criminalising the conduct in the form of peaceful protests which may not be otherwise unlawful and imposes a significant penalty of 200 penalty units or imprisonment for 2 years, or both. In other words, the extent of the burden is substantial.

479. The second consideration is whether the alternative means could achieve Parliament’s purpose to the same or a similar effect. I agree with the plaintiffs’ submission that the State’s contention that the second alternative would not necessarily achieve the same purpose, wrongly presupposes that the purpose of the impugned provision extends to deterring conduct that does not seriously disrupt or obstruct the use of a major facility (and does not constitute an unlawful obstruction or disruption) but merely causes persons to be redirected (per subs (1)(d)). The purpose does not extend to lawful conduct which merely causes persons to be redirected.

480. Similarly, proscribed conduct under s 214A which merely causes partial closure of a major facility is not unlawful under existing laws. The purpose of the provision does not extend to deterring such conduct when it does not seriously disrupt or obstruct the use of the major facility.

481. These conclusions may be further buttressed by using the analytical approach of Edelman J in Clubb.

482. Edelman J assessed (at [480]) whether the burden would be deeper and wider upon the impugned law than the alternative.

483. These questions can be approached by a consideration of essentially the counterfactual between the impugned law operating only with respect to the consequences in subss (1)(a)-(c) (as to the full closure of a facility) and the provision introduced by the Amendment Act in its entirety (the second scenario).

484. Using the methodologies of Edelman J in Clubb (at [480]) under the second scenario the burden is “deeper” in the sense that it targets protests serving as political communication on environmental issues and impairs the communication by the imposition of penal sanctions which are generally higher than penalties associated with existing laws relating generally to protests or public assemblies.

485. The burden is wider under the second scenario as the law captures more conduct, namely, lawful pro-typical protests where, for example, persons are merely inconvenienced by being redirected. In the second scenario, the restriction on political communication effected by the law is less constrained.

486. Subsections (1)(c) (for partial closure) and (1)(d) impose, in a qualitative sense, a significantly greater burden upon the implied freedom. They have a chilling effect on political communication via protests and public assemblies.

487. A similar methodological approach was adopted in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1 (“Castlemaine”), albeit in the context of a challenge under s 92 of the Australian Constitution.

488. The plaintiffs in Castlemaine were companies, agents and retailers who brewed beer in Queensland, New South Wales and Western Australia, for sale around Australia. The plaintiffs sold bottled beer in South Australia in non-refillable bottles. The Beverage Container Act 1975 (SA) (“the 1975 Act”) introduced a mandatory scheme regulating the use and sale of beverage containers in South Australia and provided for a mandatory deposit of 5 cents per bottle refundable on the return of the bottle.

489. The 1975 Act was amended by the Beverage Container Act Amendment Act 1986 (SA) (“the 1986 Act”) and new regulations were enacted under the 1975 Act. The 1986 Act and the regulations replaced the 5-cent refund by a range of amounts from 4 cents per container for refillable beer bottles to 15 cents for non-refillable containers. Section 5b, in the 1986 Act, included a notice which exempted refillable bottles from the deposit. By s 6(1) it was made an offence to sell beer in a container which did not show the amount of the applicable refund and s 7 made it an offence for a retailer to refuse to accept the return of containers marked in accordance with s 6(1) or to fail to pay the refund amount.

490. The practical effect of the 1986 Act and the regulations by s 5b was that the plaintiffs were competitively disadvantaged because they brewed beer using non-refillable bottles and it was uneconomic for them to convert their existing interstate plants to use refillable bottles.

491. The plaintiffs brought a claim challenging the validity the 1986 Act, the regulations and the notice under s 5b because of the differential treatment against the sale of packaged beer brewed interstate in South Australia, on a protectionist basis.

492. The factual matrix in Castlemaine is distinct from that in this judgment. Nonetheless, the proportionality analysis used by the Court is analogous to this case in a discrete way as follows.

493. The Court indicated that the object of the law should be identified (at 473). In Castlemaine, the objects of the 1986 Act and the regulations were to promote litter control through a return-and-earn system and to promote energy and resource conservation by discouraging the use of non-refillable containers. The effect of the impugned provisions was that interstate beer brewers were disadvantaged in favour of domestic brewers (in South Australia).

494. The Court found that this differential treatment was not capable of justification as a means of achieving the object of the impugned provisions (at 476).

495. Ultimately, neither the need to protect the environment from the litter problem or the need to conserve energy resources offered an acceptable explanation or justification for the differential treatment, in a protectionist sense, in relation to their interstate trade.

496. Hence, the impugned provision, s 5b of the 1986 Act was found to be invalid and ss 4, 5, 6 and 7 of the 1975 Act, as amended, were found to be valid.

497. The logic of the reasoning by the Court in Castlemaine was that the Court considered a dichotomy between the 1986 Act and the operation of that Act without s 5b. Analogously, in this case, without subs 214A(1)(d) (and subs (1)(c) for partial closure of a major facility), are not capable of justification as a means of achieving the object of the impugned provision but the remainder of s 214A is valid.

498. Overall, the impugned law (as to subss (1)(d) and (1)(c) (with respect to partial closure of the facility)) has failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect.

499. In my view, the impugned law fails at the stage of the analysis vis-a-vis structured proportionality, to the extent of the imposition of the consequences in subs (1)(c) for partial closure or subs (1)(d) (arising from conduct in the chapeau of entering and remaining on or near a major facility).

Inadequacy in its Balance

500. It is not strictly necessary to consider this question considering my findings as to the first two limbs under question three. However, I will briefly deal with the question as it was fully argued.

501. What is to be balanced, in this respect, “are the effects of the law – in terms of the benefits it seeks to achieve in the public interest and the extent of the burden on the implied freedom”: Clubb at [72] (Kiefel CJ, Bell and Keane JJ).

502. Thus, the level of judicial scrutiny to be undertaken depends upon the extent of the burden. In McCloy, the plurality (French CJ, Kiefel, Bell and Keane JJ) stated at [87] and [89]:

“[87] The purpose of and benefit sought to be achieved by legislative provisions assume relevance in the third stage of the test for proportionality. This stage, that of strict proportionality or balancing, is regarded by the courts of some legal systems as most important. It compares the positive effect of realising the law's proper purpose with the negative effect of the limits on constitutional rights or freedoms. It requires an “adequate congruence between the benefits gained by the law's policy and the harm it may cause”, which is to say, a balance. Balancing is required because it is rare that the exercise of a right or freedom will be prohibited altogether. Only aspects of it will be restricted, so what is needed, to determine whether the extent of this restriction is reasonable, is a consideration of the importance of the purpose and the benefit sought to be achieved. Logically, the greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate. It has been observed 109 that notions of balancing may be seen in Castlemaine Tooheys Ltd v South Australia, in the context of the s 92 freedom.

…

[89] The balance struck between the importance of the purpose and the extent of the restriction on the freedom necessarily involves a value judgment. The fact that a value judgment is involved does not entitle the courts to substitute their own assessment for that of the legislative decision-maker. This accords with the view, so often expressed by this Court, as to the role of Chapter III courts under the separation of powers effected by the Constitution. However, the courts have a duty to determine the limit of legislative power affecting constitutionally guaranteed freedoms, and assessments by courts of the public interest and benefit in a piece of legislation are commonplace. In ACTV and Nationwide News, and in later cases, the public interest pursued by the legislation in question was identified as relevant to whether a restriction on the freedom was justified.”

503. As stated in the judgment of the plurality in McCloy, the balancing process involves a value judgment. This involves an assessment of the nature and extent of the impediment to receipt by electors of information capable of bearing on the intensity of the judicial scrutiny: Ruddick at [82] (Gageler J).

504. Later in Farm Transparency (albeit in dissent) Gageler J (as his Honour then was) made observations about the role of the Court in considering the third limb of structure proportionality at [78] and [80], with respect, consistently with the views expressed in McCloy:

[78] Lange postulates, and Brown v Tasmania illustrates, that the balancing of the freedom to communicate on matters of government and politics against the protection of other legitimate societal interests is a matter for legislatures to “determine” but for courts to “supervise”. Under our system of representative and responsible government, as under some other similar systems, “the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny”: “[w]hat is of utmost relevance is the resulting legislative choice”. Legislative judgment about how a particular balance ought to be struck must be accorded respect. “But, in the ultimate analysis, it is for the [c]ourt to determine whether the constitutional guarantee has been infringed.”

The prohibitions infringe the constitutional guarantee

[79] It may well be legitimate to seek to dry up an illegal market for stolen goods by prohibiting the possession and sale of goods known to have been obtained by burglary. However, the market sought to be dried up by the prohibitions in this case is a constitutionally protected “marketplace of ideas”. That marketplace is foundational to a “society organised under and controlled by law”. Within the marketplace of ideas, factual information bearing on matters of political and governmental concern known to its possessor and potential communicator to be true is all too often in short supply.

[80] The prohibitions on communication and possession in question remove one source of that supply of true factual information having the potential to bear on matters of political and governmental concern. The source removed - visual imagery - is of its nature not only factual but peculiarly communicative. In Levy v Victoria, McHugh J adopted the submission of counsel that “[t]he impact of television depiction of the actual perpetration of cruelty, whether to humans or to other living creatures, has a dramatic impact that is totally different [from] saying, ‘This is not a good idea’”. The internet and the smartphone have only reinforced the persuasive power of visual imagery.”

505. A similar approach was applied by Kirk JA in Burton at [71] as follows:

“[71] Even so, there is a burden on the freedom. That not insignificant but limited burden is readily justified. Why should the important privacy interests of the vulnerable child or young person be overridden by the desire of a critic to use their case as an example? The fact that the critic thinks themselves justified, and may even be the parent who has lost responsibility for their child, does not mean that there is no legitimate interest in protecting the privacy of the child in question. If the protected child or young person thinks it is in their own interest for publication or broadcast to occur, they can consent to that from when they are 16. Prior to that time the Children's Court can be asked to consent. In this context it is certainly not the case that “the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom”: cf Comcare v Banerji (2019) 267 CLR 373 at [38].”

506. Nonetheless, it is important to mention some of the constraints operating upon the balancing exercise in the third limb in some recent authorities.

507. In Clubb, Edelman J stated at [495] that the balancing exercise is “highly constrained.” His Honour stated:

“[495] The Australian foundations of the implied freedom of political communication are inconsistent with an open-ended value assessment at the adequacy in the balance stage. The approach to adequacy in the balance must be highly constrained. This is, in part, because the freedom of political communication arises only as an implication to secure the effective operation of the constitutional system of representative and responsible government. The very representative and responsible government that it secures involves legislative implementation of policy decisions. Thus, it has been said that the stage of adequacy in the balance in Australia requires the judgment to be made “consistently with the limits of the judicial function”. There are two significant constraints consistent with the permissible constitutional limits of the judicial function that exist to prevent an approach at this stage from operating as a judicial reassessment of the importance of the public policy priorities of the legislature.”

508. Similarly, Nettle J at [266] said the that a law is invalid at this stage only if it is “grossly disproportionate”, in a passage that was later applied by Bathurst CJ, Leeming and White JJA in Cheema v New South Wales (2020) 102 NSWLR 714 at 732 [86]. The extract from Nettle J’s judgment in that respect is as follows:

“[266] Consistently with the plurality's adoption of three-part proportionality testing in McCloy v New South Wales, and the acceptance by a majority in Brown that three-part proportionality testing can be of assistance in the determination of whether a law is appropriate and adapted to serving a legitimate purpose consistent with the system of representative and responsible government established by the Constitution, I adhere to the view, which I expressed in Brown, that three-part proportionality testing comprised of the tests of suitability, necessity and adequacy in balance affords an appropriate method of assessing whether a law is reasonably appropriate and adapted to serving a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution. But with the benefit of reading in draft what the plurality has written in this matter, it is apparent that what I wrote in Brown concerning the content of the necessity test requires some modification. As it now appears to me, in cases in which three-part proportionality testing is applied its application should proceed in accordance with the following criteria:

(1) A law is reasonably appropriate and adapted to achieving a legitimate end consistent with the system of representative and responsible government if it is suitable, necessary, and adequate in its balance308.

(2) A law is suitable if it exhibits a rational connection to the purpose of the law and a law may be seen to have a rational connection to its purpose if the means for which the law provides are capable of realising the law's purpose.

(3) Up to a point, views may reasonably differ as to whether a law which burdens the implied freedom of political communication is necessary for the achievement of a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution. Within that range, it is for Parliament to decide what is necessary for the achievement of the purpose. It is only when and if Parliament's selection lies beyond the range of what could reasonably be regarded as necessary that the law will be adjudged as unnecessary. One circumstance, among others, in which that may appear to be the case is where a party seeking to impugn the law can point to an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom.

(4) A law is adequate in its balance if it presents as suitable and necessary in the senses described unless its effect upon the implied freedom is grossly disproportionate to or goes far beyond what can reasonably be conceived of as justified in the pursuit of the law's purpose.”

509. A context-based time, place and manner restriction demands closer scrutiny corresponding to a need for greater justification than a context – neutral time, place or manner restriction: Clubb at [181] (Gageler J) (see also [54], per Kiefel CJ, Bell and Keane JJ).

510. Similarly, in LibertyWorks, Steward J at [292]–[293] said that the Court in approaching this limb should have ‘considerable trepidation’ and invalidity occurs where there is an ‘overreach of means over ends’. That passage is extracted below:

“[292] It has been said that a law which is found to be suitable and necessary may nonetheless impermissibly burden the implied freedom if “the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom”. In other words, the question is “whether the law imposes a burden on the implied freedom which is ‘manifestly excessive by comparison to the demands of legitimate purpose’”. The inquiry is not a comparison of the benefits of the law with the benefits of an unburdened implied freedom, but a comparison of the effects of the law and the extent of the burden. An overreach of means over ends may well demonstrate an excessive burden on the implied freedom which is disproportionate to the purpose or object of the impugned law. In that respect, a “manifestly” excessive burden on the implied freedom is, in my view, a reference to a legislative means of achieving a legitimate purpose that is so extreme in its effect on that freedom that it cannot, in any sensible way, be justified. The hurdle to be jumped is very high. As Nettle J observed in Brown v Tasmania:

“[I]n the Australian constitutional context the description ‘adequate in its balance’ is better understood as an outer limit beyond which the extent of the burden on the implied freedom of political communication presents as manifestly excessive by comparison to the demands of legitimate purpose.”

[293] In Clubb, Edelman J emphasised that a conclusion that a law is inadequate in the balance after nevertheless making a finding that the law has a legitimate purpose “could have large consequences”. As a result, as his Honour pointed out, in some other jurisdictions this test has been effectively abandoned. This limb of structured proportionality should, accordingly, be approached with very considerable trepidation.”

511. Chief Justice Kiefel, Keane and Gleeson JJ in LibertyWorks suggested that it requires a “manifestly excessive burden” at [85], as follows:

“[85] Recently it has been confirmed that a law is to be regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by the adverse effect on the implied freedom. In this regard a powerful public, protective purpose assumes a special importance. The FITS Act clearly has such a purpose. The limited submissions made by the plaintiff on this topic do not deny that the purpose of the FITS Act is protective of Australia's political and electoral processes. That important purpose cannot be said to be outweighed by a burden on the freedom which is modest.”

512. It should also be noted, if suitable and necessary, a law is regarded as “adequate in its balance” unless “the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom”: Banerji at [38] (Kiefel CJ, Bell and Keane JJ and Nettle J); LibertyWorks at [85] (Kiefel CJ, Keane and Gleeson JJ).

513. The State contended that what s 214A sought to achieve in the public interest outweighed the extent of any burden on the implied freedom. The important purpose of the provision is to deter the consequences of the conduct found in subss (1)(a)-(d).

514. This interest outweighs “any slight burden on the freedom.” The law is not directed to communicative activity and only burdens communication incidentally to protect major facilities. The provisions proscribe the consequences in subss (1)(a)-(d) caused by the conduct.

515. This submission needs to be considered in the light of the conclusions in the judgment that the provision burdens the implied freedom. The burden imposed is deliberate and is certainly not insubstantial.

516. The law deters of lawful protest activity by the imposition of a broad prohibition on such activities. Those constraints, as the plaintiffs put it, are not “tethered to any requirement to intend adverse consequence, subject to exceptions that are narrow in operation.” As stated by Kiefel CJ, Bell and Keane JJ in Brown (at [145]), the law is likely to deter protests of all kinds at specified locations often used for political communication, such as remaining near Town Hall Station for a protest at the Sydney Town Hall.

517. In my view, the adverse effect of s 214A on the implied freedom in terms of deterring otherwise lawful protests significantly outweighs the benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves. It does represent overreach from the legislative purpose.

518. Thus, even if s 214A was suitable and necessary (noting I have found to the contrary), it is not adequate in its balance.

CONCLUSION: IMPLIED FREEDOM

519. When viewed in the light of conduct in the chapeau consisting of entering or remaining on or near a major facility, the Court finds that subs 214A(1)(c), so far as the provision concerns the closure of part of a major facility, and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication.

ROADS REGULATION

Clause 48A(1) of the Roads Regulation 2018 (NSW) is not invalid

520. The plaintiffs sought a declaration that cl 48(A)(1) of the Roads Regulation is invalid because it is beyond the regulation-making power conferred by the Roads Act. For reasons which follow, I do not accept that contention based, as it is, upon the grounds that the Regulation lacks reasonable proportionality and cl 48A effects an impermissible sub-delegation of power to prescribe “major roads”.

The Legislation and Delegated Legislation

521. By the Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 144G of the Roads Act was introduced in 2018 (see Sch 2.4).

522. Prior to the commencement of the Amending Act, s 144G(1) prohibited conduct causing damage to, or serious disruption or obstruction to the use of the Sydney Harbour Bridge or any other major bridge or tunnel. Section 144G(2) provided that serious disruption or obstruction would be made out if, as a result of the person’s conduct, the bridge or tunnel was closed or “vehicles or pedestrians [were] redirected.” Section 144G(6) provided that a “major bridge or tunnel” was a “bridge or tunnel prescribed by the regulations for the purposes of this section.” Until 24 March 2022, no such prescription was made, with the result that the provision related only to the Sydney Harbour Bridge.

523. In the Second Reading Speech to the Bill introducing s 144G, the Minister said:

“To provide greater deterrence, the bill creates an offence relating to actions that cause damage, disruption or obstruct vehicles and pedestrians using the Sydney Harbour Bridge. If a person causes or intends to cause damage to the structure or seriously disrupts traffic, including trains, using the bridge or tunnel, or commits any offence punishable by imprisonment or arising under the Summary Offences Act 1988, he or she will be liable to a maximum court penalty of 200 penalty units— currently $22,000—and/or two years imprisonment. In future this provision can be extended by regulation to other major bridges or road tunnels, if warranted.”

524. The Amending Act extended the existing prohibition in s 144G(1) in various respects including, as relied upon in the plaintiff’s contentions, the addition of “major roads” I will turn then to the current provisions.

525. Part 9 of the Roads Act is headed “[r]egulation of works, structures and activities.” Division 7 (ss 144G-144H) is titled “[t]respassing on Sydney Harbour Bridge and other major bridges, tunnels and roads”.

526. Section 144G(1) was earlier extracted in this judgment. That provides that a person must not enter, remain on, climb, jump from or otherwise trespass on any part of the Sydney Harbour Bridge or any other “major bridge, tunnel or road”, if that conduct causes damage to the bridge, tunnel or road or seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel, or road. Section 144G(2) provides that a person seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road if, as a result of the person’s conduct, the bridge, tunnel or road (or any part of the bridge, tunnel or road) is closed or vehicles or pedestrians are redirected.

527. Subsections 144G(3), (4), (4A), (4B) and (5A) of the Roads Act contain certain exceptions.

528. Section 144G(6) of the Roads Act states:

In this section–

major bridge, tunnel or road means a bridge, tunnel or road prescribed by the regulations for the purposes of this section.

vehicle includes a train.

529. Subsection 264(1) of the Roads Act relevantly empowers the Governor to “make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act …”

530. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 inserted cl 48A of the Regulation. It prescribed “any bridge or tunnel within the Greater Sydney Region” as a major bridge or tunnel. As earlier mentioned, shortly after the insertion of cl 48A, it was amended by the Roads Amendment (Major Bridges and Tunnels) Regulation (No 2) 2022, so as to prescribe bridges or tunnels in the Greater Sydney Region, the City of Newcastle or the City of Wollongong, and also bridges or tunnels that join main roads, highways or freeways.

531. As earlier noted, s 48A was amended by the Roads Amendment (Major Roads) Regulation 2022. This provision has earlier been set out in this judgment. The Interpretation Act provides that, except in so far as the contrary intention appears in the instrument, “[w]ords and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made”: ss 5(2) and 11 of the Interpretation Act. The Dictionary to the Roads Act defines “main road”, “highway”, “freeway” and “tollway” as meaning a particular class of road declared to be a “main road”, “highway”, “freeway” and “tollway” by order in force under ss 46, 47, 48 or 52 of the Roads Act respectively. A “bridge” is defined as including “any gate, pier, fender, dolphin or platform or any other thing incidental to the use or protection of the bridge.” There is no contrary intention in the Regulation which displaces these definitions.

532. A public road is defined in the Dictionary of the Roads Act to mean any road that is opened or dedicated as a public road and any road that is declared to be a public road for the purposes of the Roads Act. Under s 55, the classification of roads under Div 1 of Pt 5 can apply to the whole or part only of a road. A part of a road may be differently classified to another part and the same length or width of a public road may have more than one classification.

533. As earlier mentioned, the Minister may only make an order for the classification of roads under Div 1 of Pt 5 on the recommendation of Transport for New South Wales (TfNSW) in accordance with s 54. There are certain consultation requirements required of TfNSW under Div 2. As the State submitted, the classification of roads is significant for the purposes of distributing certain functions between TfNSW and other roads authorities. Under Div 3 TfNSW is required to keep a record of all classified roads pursuant to s 163(4) and that record must be available for public inspection as outlined in s 163(6).

Reasonable Proportionality

534. In written submissions, the plaintiffs contended that the Regulation may be found to be invalid, as subordinate legislation, where its effect is so unreasonable that it cannot be regarded as falling within the contemplation of the legislature in enacting the empowering Act, in this case the Roads Act. It was thus submitted by the plaintiffs that the question raised in the present proceedings is whether cl 48A(1) is so lacking in reasonable proportionality as not to be a real exercise of power under s 264(1) of the Roads Act; reliance being placed, in that respect, upon South Australia v Tanner (1989) 166 CLR 161at 165, 167-168 (Wilson, Dawson, Toohey and Gaudron JJ); Williams v Melbourne Corporation (1933) 49 CLR 142 at 155 (Dixon J) and Clements v Bull (1953) 88 CLR 572 at 577 (Williams ACJ and Kitto J).

535. However, as was submitted on behalf of the State, the relevant inquiry in the present context is as to unreasonableness, not reasonable proportionality. In Athavle v State of New South Wales [2021] FCA 1075 (“Athavle”) at [98], Griffiths J held “it is well settled that disproportionality is available only where the provision empowering subordinate legislation to be made is directed to a particular purpose, as opposed to it having a connection with a particular subject matter.”

536. Reference may also be made in this respect to the judgment of Leeming JA (with whom Bathurst CJ and McColl JA agreed) in Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499 at [66]-[67] as follows:

[66] It is sufficient to confine this aspect of the argument to ultra vires based on the express requirement that the regulation not be inconsistent with the Act. As noted above, the EPA maintained, beyond this, that the regulation needed to be capable of being considered to be reasonably proportionate to the enabling purpose. I doubt that is so.

[67] It is clear law that the starting point is to determine “the true nature and purpose of the power” to make the regulation: Williams v Melbourne Corporation (1933) 49 CLR 142 at 155. It is clear that not every regulation-making power is conferred in purposive language such as that in South Australia v Tanner. That is why French CJ repeatedly emphasised in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 87 ALJR 289 that the proportionality test was confined to “purposive powers entrusted to a public authority to make delegated legislation” at [58], “delegated legislation made in furtherance of a purposive power” at [59] and “delegated legislation made in the exercise of a purposive power” at [62] (emphasis added). In this Court, in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWSC 348; 91 LGERA 31, Handley JA said that a power to make a State environmental planning policy was “not purposive and its exercise is not required to be conducive to a statutory object”: at 38 (the other members of the Court regarded the power as a purposive power). I agree with the statement by Mr Herzfeld that proportionality:

“applies only where the empowering provision empowers subordinate legislation directed to a particular purpose, as opposed to subordinate legislation which has a connection to a particular subject matter”: P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources (2013) Thomson Reuters, p 383.

537. Whilst various tests have been prescribed as to the test for unreasonableness in this context, such as the delegated legislation being “so oppressive or capricious that no reasonable mind can justify it”: City of Brunswick v Stewart (1941) 65 CLR 88 at 97 (Starke J); see e.g. Athavle at [94], it is sufficient for present purposes to note, as the State did, that there is a “higher threshold” for unreasonableness invalidating delegated legislation: Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1 at [48]-[54] (French CJ).

538. The case for the plaintiffs in this respect may be summarised as follows:

1. Section 246 empowered the Governor to make regulations “for or with respect to any matter that is required or permitted to be prescribed.” Clause 48A concerns matters under s 144G(6) permitted to be prescribed.

2. Section 264(1) does not permit the Governor to extend the scope of general operation of the Roads Act by regulations or add new and different means of carrying the purposes of the Act out or to depart from or vary the plan which the legislature has adopted to attain its ends: Shanahan v Scott (1957) 96 CLR 245 (“Shanahan”) at 250 (Dixon CJ, Williams, Webb and Fullagar JJ);

3. That submission holds good for the two tests in s 264, namely, first with respect to any matter that by this Act is required or permitted to be prescribed, and, secondly, “that is necessary or convenient to be prescribed for carrying out or giving effect to this Act” which do not differ in scope: New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 (“Work Choices”) at [415] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

4. Section 144G(6) clearly empowers the Governor to determine, through regulations, the roads which are sufficiently “major” to be a “major road”. Reasonable minds may differ about that characterisation, but the legislature must be taken to have intended that a “major road” would be something different from a “main road”. That conclusion follows from the legislature’s choice not to utilise the concept of a “main road”, as already established by the Roads Act, for the purposes of s 144G(1). The focus of the extrinsic materials on “major disruptions to the New South Wales transport network”, “major traffic delays”, “major inconvenience”; and “direct economic loss and lost productivity” strongly suggests that the legislature intended to create a narrower category of roads to which s 144G(1) would apply, by comparison to the roads classified as main roads, largely for administrative reasons, under the Roads Act.

5. In the present case, cl 48A prescribes all “main roads” as “major roads” for the purposes of the offence provision in s 144G(1) of the Roads Act. Because it directly conflates two concepts which the legislature intended to keep separate, namely, “major roads” and “main roads”, cl 48A of the Regulation cannot be regarded as falling within the contemplation of the legislature and is not a real exercise of the power in s 264(1) of the Roads Act, when read with s 144G(6). By virtue of these analyses, cl 48A(1)(a) is invalid.

6. The plaintiffs also challenged the validity of cl 48A(f) insofar as that Regulation prescribed all bridges or tunnels within the Greater Sydney Region, City of Newcastle and City of Wollongong. Insofar as the Regulation did so, it was submitted, it was not reasonably proportionate.

7. The purpose of the power to prescribe a bridge, tunnel or road as a major bridge, tunnel, or road for the purposes of s 144G must be to identify those bridges, tunnels or roads that have the character of being, or answer the description of, “major”. The geographic determinations utilised in cl 48A(f) do not seek to undertake an assessment of any particular bridge or tunnel.

8. It is not reasonable to prescribe every bridge or tunnel within the large areas of Sydney, Newcastle and Wollongong with the classification of “major”. The significance of the adjective “major” is to differentiate between different types of bridges or tunnels. To prescribe every bridge and tunnel within a large geographical area encompassing the main urban regions of NSW is to ignore that object of differentiation. The blanket and non-discriminating approach of cl 48A(f) in that regard impermissibly expands the scope of s 144G and adds a new means of carrying its purpose into effect or departs from the legislature’s plan to attain its ends, by replacing the qualitative assessment of whether a bridge or tunnel is major, with an assumption based on geography.

Consideration

539. Whilst it is true, as submitted by the plaintiffs, that there are two limbs for the making of regulations under s 264, the first limb being “with respect to any matters that by this Act is required or permitted to be prescribed” and the second being “that is necessary or convenient to be prescribed for carrying out or giving effect to [the] Act,” I reject the contention that those limbs do not differ in scope in order to test the validity of the Regulation.

540. The two tests created by the two limbs of s 264 compose different tests for validity. In R v Goreng-Goreng (2008) 220 FLR 21 at [77] Refshauge J stated that regulations enacted pursuant to the “required or permitted to be prescribed” limb “do not have to pass the same test of validity” as arising under the necessary or convenient limb. The learned authors DC Pearce and S Argument in Delegated Legislation in Australia (2017) at 14.23 stated as follows:

“The most frequently cited case relating to the power to make regulations necessary or convenient for giving effect to an Act is Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 . That case also serves as a good factual illustration of the approach of the court to the resolution of the validity issue. Regulation 44 of the Egg and Egg Pulp Marketing Board Regulations 1953 (Vic), made under the Marketing of Primary Products Act 1935–1953 (Vic) read: ‘No person shall without the consent of the Board place or cause to be placed any eggs in any cold storage premises nor subject any eggs to any preservative treatment.’ (There was then a proviso exempting domestic storage eggs from the operation of the regulation.) It was sought to argue that the regulation was valid under a power to make regulations necessary or expedient for the administration of the Act or for the carrying out of its objects. The High Court, after examining the Act, concluded that the regulation extended to eggs that were no longer (or, indeed, may never have been) part of a marketing scheme provided for under the Act. The Act was concerned with marketing schemes and not with the general sale and control of eggs, and therefore the regulation was invalid.

The High Court (at 250) stated the general approach to be adopted when considering the validity of delegated legislation purporting to be made under a general power. The court examined authorities relating to the topic and concluded that where there is a power to make regulations necessary or convenient for giving effect to an Act:

… such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

The Court concluded that in this particular case the regulation extended to eggs with which the board had, and could have had, nothing to do and also extended to those which the board had sold unconditionally. The provision was therefore:

… much more than an elaboration, filling in or a fulfilment of the plan or purpose which the main provisions of the Act have laid down or, if the expressions be preferred, have “outlined” or “sketched”. It means that an attempt has been made to add to the general plan or conception of the legislation and to extend it into a further field of regulation, namely that of the use, handling or disposition of eggs independently of the board’s marketing of the eggs vested in or otherwise acquired by the board. [at 253–4]

The statements of the High Court were approved by the Privy Council in Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629. The passage quoted above from 250 was also approved by the High Court in Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293 at 298 CaseBase document for this case and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [61] CaseBase document for this case.”

541. The plaintiffs’ reliance on the Work Choices decision and Shanahan is misplaced as the first named judgment of the High Court dealt with regulations which specified matters which, to use the language of the industrial legislation then under consideration, were “prohibited content” and the latter was not concerned with the scope of power of the second limb of s 264.

542. There was a question of construction raised by the plaintiffs regarding s 144G(6) and cl 48A(1) and the power thereby conferred on the Governor to determine the meaning of the composite expression “major bridge, tunnel or road”. However, I do not consider the construction proposed by the plaintiffs may be accepted. Section 144G(6) does not confer a power on the Governor to determine which bridges, tunnels or roads are “major” for the purposes of that expression. Rather, s 144G(6) provides the major bridges, tunnels or roads are those designated by the Regulation for the purpose of s 144G(6) such that the expression major bridge, tunnel or road is entirely defined by reference to the bridges, tunnels or roads prescribed by the Regulation.

543. Clause 48A(1) provides that each bridge, tunnel or road in paragraphs (a) to (f) are a major bridge, tunnel or road for the purposes of s 144G. That is not a specification of what is “major” but a provision in the nature of a deeming provision which specifies the bridges, tunnels or roads which are a major bridge, tunnel or road for the purposes of s 144G.

544. The acceptance of the primary submission advanced by the State as a matter of construction does not result in too great a distinction between power to make regulation with respect to a particular subject matter and a power to make regulations directed to a particular purpose as submitted for the plaintiffs. This construction is properly available upon the text of ss 264 and 144G and no contrary intention is discernible as a matter of context or evident purpose. Nor does it follow that the regulations adoption of the concept of a major road for the purposes of s 144G(1) self-evidently evinces an intention to treat a major road as something different to a main road or that the legislature intended to create a new category of roads within s 144G(1) than main roads.

545. Thus, I do not consider that cl 48A(1)(a) conflates two concepts which the legislation intended to be separate.

546. Any presumption that different words used in the Roads Act denote different meanings (itself a relatively weak principle in the interpretation of the Roads Act: see Taheri v Vitek (2014) 87 NSWLR 403 at [124] (Leeming JA, Bathurst CJ agreeing), is rebutted by the context in which the provisions operate.

547. As was submitted by the State, in the present case, any presumption is displaced by context. An order under Pt 5 Div 1 of the Roads Act may not be made otherwise than on the recommendation of TfNSW (s 54(1) of the Roads Act) and, in deciding what to recommend to the Minister, TfNSW must take specified matters into consideration, including, relevantly, whether the main road “is or may become a major route for long-distance traffic” (s 59(b) of the Roads Act). The presence of such a criterion for the designation of a “main road” denies the plaintiffs’ suggestion that Parliament intended, by using the expression “major bridge, tunnel or road”, to “create a narrower category of roads to which s 144G(1) would apply.”

548. Clauses 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness.

Sub-Delegation

549. The plaintiffs contended that cl 48A(1) does not itself prescribe major roads but incorporates classifications given to roads by the Minister at any time.

550. It was submitted that the content of the category of “main road”
     and “major road” will fluctuate from time to time, depending on orders made by the Minister, and that it was not possible to infer that the Governor (with the advice of the Executive Council), considered the classifications adopted by the Minister for the prescription of what is major for the purposes of cl 48A(1).

551. It was also submitted that there was no incorporation of particular orders by reference to s 42(1) of the Interpretation Act or the authorisation of the Minister to determine what should be a major road in terms of that which might be permissible under s 42(2)(c) of the Interpretation Act.

552. However, as earlier discussed, cl 48A(1) prescribes major bridges, tunnels and roads by employing defined terms in the Roads Act. The provision does not rely on any incorporation in accordance with s 42 of the Interpretation Act. For example, the power conferred on the Governor by s 144G(6) and s 246 of the Roads Act has been exercised by the Governor in cl 48A(1), with the Governor prescribing major roads to be a road declared to be a main road, by an order in force under s 46 of the Roads Act.

553. It may be noted that the Governor prescribed a major bridge or tunnel, in the same way as a bridge or tunnel in the greater Sydney Region, the City of Newcastle and the City of Wollongong. I accept the submission advanced by the State, that tunnels and bridges in those areas, being major population centres in NSW, are capable of being described as major roads, tunnels and bridges, because, by their character, they represent “natural pinch points” for traffic.

554. Thus, the exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context.

555. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.

Conclusion: Roads Regulation

556. The challenge to the validity of the Regulation (cl 48A(1)(a) and (f)) must fail.

OVERALL CONCLUSION

557. The Court has concluded that s 214A of the Crimes Act does effectively burden the implied freedom in its terms, operation, and effect. The law is, therefore, constitutionally invalid unless justified.

558. The purpose of the impugned law may be identified as being to increase deterrents to conduct (specified in the chapeau to the impugned provision) causing damage or serious disruption or obstruction to or closure of major facilities, and hence, causing harm to the community generally. The purpose of the law is not to criminalise conduct merely causing inconvenience to particular persons attempting to use major facilities where such conduct causes them to be redirected. So expressed, the purpose is a legitimate one.

559. Thus, the first two questions in the McCloy-Brown analysis, as affirmed in Clubb, and applied by this Court in Burton, must be answered in the affirmative.

560. Authority dictates that, in those circumstances, the Court must consider the third question under the McCloy-Brown analysis evoking consideration of structured proportionality. The Court finds, in that respect, that the answer to question three must be in the negative.

561. The impugned law is not 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. The Court has found that the impugned law has a legitimate purpose and is suitable, in the sense of having a rational connection to that purpose.

562. However, the Court has found that the impugned law has failed at the stage of analysis in considering structural proportionality concerning necessity. That is, there is an obvious and compelling alternative to the impugned law which is equally practicable and available and would result in a significantly lesser burden. The impugned law is also inadequate in its balance.

563. Both of those conclusions concern the operation of subs 214A (1)(c) (so far as the provision concerns the partial closure of a major facility) and subs 214A(1)(d) (so far as those provisions relate to the conduct of entering, remaining on or near to any part of a major facility).

564. As such, s 214A imposes an unjustified burden on the implied freedom to communicate on governmental and political matters which is an indispensable incident of the constitutionally prescribed system of government.

565. As mentioned, that conclusion concerns the provisions of subs 214A(1)(c) (vis-a-vis the partial closure of major facilities) and subs 214A(1)(d) which thereby renders those subsections invalid. The remainder of s 214A(1), by which I intend the chapeau, and subss 214A(1)(a)-(c) (with respect to the full closure of major facilities), in my view, does not represent an unjustified burden on the implied freedom.

566. That conclusion raises the question of severability or partial disapplication of the invalid components of s 214A.

567. The plaintiffs sought that the provisions of s 214A be declared invalid, but nonetheless both parties focused particular attention on the validity of subs 214A(1)(d) and to a lesser extent, subs (1)(c). However, neither party addressed the question of severability in the event that any part of the s 214A(1) was found to infringe the implied freedom.

568. The Court may sever an invalid provision from an Act if severance is consistent with Parliament’s intention for the impugned legislation. There are a number of authorities that discuss this approach with respect to s 15A of the Acts Interpretation Act 1901 (Cth) which creates a statutory presumption in favour of severability. I see no reason why it cannot apply with s 31 of the Interpretation Act in NSW. (See also Monis at [327]-[328] (Crennan, Kiefel and Bell JJ)) and Tajjour at [168]-[171] (Gageler J (as his Honour then was))).

569. As earlier mentioned, the main limitation in that respect, is that severance will not be available if the Parliament evinces a “positive indication in the enactment that the legislature intended it to have either a full and complete operation or none at all”: Cam & Sons v Chief Secretary (1951) 84 CLR 442 at 454 (Dixon, Williams, Webb, Fullagar and Kitto JJ).

570. I have found that the provisions of subss 214A(1)(a)-(d) are not interlocking (see Brown at [296] (Nettle J)) but are, in substance, discrete and act in a distributive manner.

571. As I have found subs 214A(1)(d) to be invalid, and as it is a discrete element of s 214A(1), it may, in my view, be severed.

572. A more complicated question arises with respect to subs (1)(c) where the provision has been found to be only partially invalid. Nonetheless, the invalid part, in my view, can be subject to partial disapplication because it is discrete, both as between subs (1)(c) and the remaining subss (a)-(b) and (d) but also within subs (1)(c) by the expression “, or part of the major facility”.

573. The following passages from the judgment of Edelman J in Clubb are applicable in that respect (at [429]-[432]):

[429] In Bank of New South Wales v The Commonwealth, Rich and Williams JJ described these two principles of severance and disapplication in the context of s 6 of the Banking Act 1947 (Cth). Their Honours said that s 6 was capable of giving effect to a provision that would otherwise be inconsistent with the Constitution in two situations:

“where [(i)] the provision contains independent portions within power which are severable, or [(ii)] the provision is capable of operating in a distributive manner in respect of each and every part of the subject matter and its operation can be confined to those parts which are within power”

[430] Similarly, Dixon J spoke of the difference between (i) severing or “separating clauses or expressions”, and (ii) confining a provision “in its operation to so much of the subject it is capable of covering as is constitutionally competent to the legislature, or, as it is sometimes said, whether the general words are to be read and applied distributively”.

[431] The technique of partial disapplication cannot be used if it would alter a statute's general policy or scheme or the specific policy or purpose of the relevant provision. To do so would cross the line between adjudication and legislation. One way in which the general policy or scheme of a statute or a provision could be altered is where the partial disapplication would lead to a result that contradicts or alters any policy of the statute. An obvious instance of contradiction is where the statute or provision evinces a “contrary intention” that it “have either a full and complete operation or none at all”. An instance where the policy of the statute or provision could be altered might be if there were various equally available methods of partial disapplication, so that the provision could “be reduced to validity by adopting any one or more of a number of several possible limitations”.

[432] A second instance where a general policy or scheme will be altered is where the statute or provision, after partial disapplication, would operate differently upon the remaining subject matter from how it would have operated without partial disapplication. For this reason, “the enactment, when read distributively, must operate upon the persons and things affected by it in the same way as it would have operated if it had been entirely valid”.

574. For the reasons given in this judgment, I do not consider that partial disapplication would lead to a result which contradicts or alters any policy of the statute. The provision does not evince an intention to have either a full or complete operation or none at all. The provision can be reduced validly by the process of partial disapplication.

575. Clause 48A of the Roads Regulation is not invalid.

ORDERS

576. For these reasons, it is appropriate that this Court make declarations that the relevant provisions of s 214A are invalid. Having regard to the disposition of these proceedings variously favouring both parties, as a preliminary view, there should be an order to the effect that each party is to pay their own costs.

577. The orders of the Court are as follows:

578. THE COURT:

1. Declares that subs 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.

2. Declares that subs 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.

3. Otherwise dismisses the Summons filed 12 October 2022.

4. Orders that each party should pay their own costs.

5. Grants liberty to the parties to apply by writing to the Associate to Justice Walton within 21 days of these orders to vary the terms of the declarations and orders.

6. If possible, I consider it desirable that any exercise of the liberty in order (5) be dealt with on the papers. But in the event that either party wishes to have a hearing on the terms of the declarations and orders or question of costs, the parties should bring in Short Minutes of Order with an agreed programme for the disposition of the relevant issues.

Endnotes

1. This test was applied by Kirk JA (with whom Bell CJ and Leeming JA agreed) in Burton v Director of Public Prosecutions (NSW) [2022] NSWCA 22 at [16] (“Burton”). The second and third questions set out in McCloy by French CJ, Kiefel, Bell and Keane JJ at [2] and Gordon at [306] were reformulated in Brown by Kiefel CJ, Bell and Keane JJ at [104] and approved byGageler at [155] – [156] and Gordon J at [481] (“McCloy/Brown analysis”).

2. NSW Legislative Assembly Parliamentary Debates (Hansard), 30 March 2022, 8938.

3. Ibid.

4. Ibid, 8939.

5. Ibid, 8938.

6. Ibid, 8939.

7. Ibid, 8940.

8. Ibid, 8938.

9. Ibid, 8940.

10. See also South Australia v Totani [2010] HCA 39 (“Totani”) at [30] (French CJ); Commission of Police v Rintoul [2003] NSWSC 662 at [5] and [6] (Simpson J); Commissioner of Police v Allen (1984) 14 A Crim R 244 at 245 (Hunt J); Commissioner of Police v Jackson [2015] NSWSC 96 at [90] (Schmidt J); NSW Commissioner of Police v Bainbridge [2007] NSWSC 1015 at [3]-[4] (Adams J); Commissioner of Police v Vranjkovic (Unreported), NSWSC, 28 11 80 at [7] (Lee J) (“Vranjkovic”)).

11. “Under a legal system based on the common law, “everybody is free to do anything, subject only to the provisions of the law”, so that one proceeds “upon an assumption of freedom of speech” and turns to the law “to discover the established exceptions to it””: Lange at 564, citing Attorney-General v Guardian Newspapers [No 2] [1990] 1 AC 109 at 283.

12. “Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases”: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 (Gleeson CJ).

13. See Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [31] (Gleeson CJ and Crennan J); LibertyWorks at [96] (Gageler J (as his Honour then was)). It should be noted, however, that the operation of Pt 4 of the Summary Offences Act does, to a degree, ameliorate any burden on the implied freedom imposed by s 214A (as discussed later in this judgment).

14. Vranjkovic at [7] (Lee J).

15. Gageler J (as his Honour then was) in Brown at [188] stated that the impact of any given law on political communication (an electoral accountability for the exercise of legislative and executive power) “lies in the incremental effect of the law on the real world ability of a person or persons to make or receive communications which are capable of bearing on an electoral choice.”

16. I will later discuss some inherent limitations in those provisions.

17. The articles were from newspapers including the Sydney Morning Herald, the Canberra Times, the Sun (Sydney), The Guardian, the Star Observer and City Hub.

18. Reference was also made to a peace rally against the Iraq war involving some 200,000 to 300,000 people in 2003 where dozens of people were reported to have sought a vantage point at the tunnel of the entrance at St James Station.

19. In part that submission sprung from a proposition that the evidence of Ms Kvelde and Ms Jacobs did not relevantly demonstrate that s 214A(1) would not have operated with respect to those protests if it applied at the time or that the protests constituted unlawful obstructions. I will in due course reject both propositions.

20. Similar views were expressed by Heydon J in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [621], [629] and [633].

21. See also Lendlease Building Contractors Pty Limited v Australian Building and Constructions Commissioner (No 2) [2022] FCA 192 at [183]-[184].

22. Maloney at [353].

23. First Kvelde Affidavit at [3].

24. Ibid at [6]-[7].

25. Ibid at [11].

26. Ibid at [10].

27. Ibid at [12].

28. Ibid at [13].

29. Ibid at [14].

30. Ibid at [14].

31. Ibid at [18].

32. Ibid at [30].

33. Ibid at [19].

34. Ibid at [28].

35. Ibid at [19] and [27].

36. Ibid at [30].

37. Ibid at [31].

38. Ibid at [18] and [20].

39. Ibid at [28].

40. Ibid at [16].

41. Ibid at [19].

42. Ibid at [25].

43. Ibid at [26].

44. Ibid at [35].

45. Ibid at [33].

46. Ibid at [35].

47. Ibid at [31]. There is no evidence as to what the charges were or the precise conduct giving rise to the charges.

48. Second Kvelde Affidavit at [5].

49. Ibid.

50. Ibid at [5].

51. Ibid at [6].

52. Ibid at [8].

53. Ibid at [9].

54. First Jacobs Affidavit at [3]-[6].

55. Ibid at [9].

56. Ibid at [4].

57. Ibid at [16].

58. Ibid at [20].

59. Ibid at [22].

60. Ibid at [23].

61. Ibid at [24].

62. Ibid at [27].

63. Ibid at [33] and [34].

64. Ibid at [34].

65. Ibid at [36].

66. Ibid at [38].

67. Ibid at [39] and [45].

68. Ibid at [39].

69. Ibid at [47].

70. Ibid at [47].

71. Ibid at [47].

72. Ibid at [51].

73. Ibid at [54] and [55].

74. Second Jacobs Affidavit at [4].

75. Ibid.

76. Ibid.

77. Ibid at [5].

78. Ibid at [7].

79. Affidavit of Gary Beavan sworn 6 February 2023 at [4].

80. Ibid at [4].

81. Ibid at [2] and [3].

82. Intelligence report by TfNSW Security Crisis and Emergency Management Branch p 8.

83. Ibid at p 9.

84. Affidavit of Gary Beavan sworn 6 February 2023 at p 13.

85. Affidavit of Gary Beavan sworn 6 February 2023 at p 14, 15.

86. Affidavit of Gary Beavan sworn 6 February 2023 at p 17.

87. Affidavit of Gary Beavan sworn 6 February 2023 at p 19.

88. Affidavit of Gary Beavan sworn 6 February 2023 p 48.

89. Affidavit of Gary Beavan sworn 6 February 2023 p 54-55..

90. Affidavit of Gary Beavan sworn 6 February 2023 p 57.

91. Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) 778 [11.50].

92. It may be noted that there is more than one entrance to Martin Place Railway Station about Elizabeth Street Sydney, each reasonably close to the other.

93. The ordinary meaning of the word “obstruct” in The Shorter Oxford English Dictionary, 6th ed (2007) at 1975 is to “make difficult or impossible to pass through.” “An obstruction is defined as the action or an act of obstructing something or someone; the condition of being obstructed.” To disrupt is to “interrupt the normal continuity of (an activity etc); throw into disorder.”

94. Shorter Oxford English Dictionary (6th ed.) Shorter Oxford University Press at 1975.

95. Shorter Oxford English Dictionary (6th ed.) Shorter Oxford University Press at 2762.

96. Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579 at 590 (Higgins J); Lygon Nominees Pty Ltd v Commissioner of State Revenue (2007) 23 VR 474 at [31] (Redlich JA, Ashley JA and Bell AJA agreeing).

97. By way of amplification of my earlier discussion.

98. Shorter Oxford English Dictionary (6th ed.) Shorter Oxford University Press at 2474.

99. See also Shorter Oxford English Dictionary (6th ed.) Shorter Oxford University Press at 2472.

100. Ibid 691.

101. Section 3 of the Acts Interpretation Act 1931 (Tas) provides as follows: Every Act shall be read and construed subject to the limits of the legislative powers of the State and so as not to exceed such powers, to the intent that, where any enactment thereof, but for this provision, would be construed as being in excess of such powers, it shall nevertheless be a valid enactment to the extent to which it is not in excess of such powers.

102. See also Sportsodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63; [2003] 133 FCR 63 (Branson, Hely and Selway JJ).

103. Victoria v Commonwealth at 502-503 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

104. Whether s 545E(2) employs the statutory formula of “A person is not guilty of an offence in this section” in contrast to “It is a defence to a prosecution of an offence” in s 214A(2), I do not consider creates any material difference in the operation of the provisions for present purposes.

105. Henshaw v Mark (1997) 95 A Crim R 115 at 122 per Miles CJ; Fletcher v Harris [2005] ACTSC 27 at [52], [57], [59] per Higgins CJ, cited in New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 30 March 2022 at 8952 (Mark Speakman).

106. Brown at [32]-[34] (Kiefel CJ, Bell and Keane JJ) and at [238]-[240] (Nettle J).

107. First Kvelde Affidavit at [35].

108. First Jacobs Affidavit at [54].

109. It is unnecessary to decide of the reference to “any offence” in s 24 of the Summary Offences Act would only include, offences under the Summary Offences Act or extend to other offences concerning obstruction such as obstructing a person under s 200 of LEPRA.

110. See footnote [8] above.

111. Monis at [122] (Hayne J). See also Brown at [202] (Gageler J (as his Honour then was), referring to the “risk that political communications unhelpful or inconvenient or uninteresting to a current majority might be unduly impeded”).

112. Crimes Regulation 2000 (NSW), Reg 4A, Sch 1 Pt 1.

113. Ibid.

114. Lange at 566; see also Brown at [188] (Gageler J (as his Honour then was)).

115. Lange at 566 citing Theophanous at 140.

116. In argument, the plaintiffs confined the challenges to key provisions of the Protesters Act.

117. The notion of a constitutionally valid baseline was also discussed in Brown at [357].

118. The challenge to the validity of cl 48A(1) of the Roads Regulation rested upon a contention that the Roads Regulation was beyond the scope of the regulation-making power contained in the Roads Act.

119. Introduction to the Study of the Law of the Constitution, 8th ed (1915) at 267–268.

120. Traffic Regulation (WA) Reg 327 made under the Road Traffic Act 2018 (WA).

121. Schubert at 594.

122. Ibid.

123. Ibid.

124. Ibid.

125. Hubbard v Pitt [1976] QB 142 at 167.

126. Ibid at 178.

127. Reference was made to Melser v Plead [1967] NSWLR 437 at 446 (McCarthy J).

128. Of entering or remaining on or near a major facility.

129. This view is expressed with diffidence to the minority view of Gordon and Edelman JJ to the contrary (See, for example, Gordon J at [306]).

130. Gordon J indicated in Brown that an action in trespass or nuisance could result in an injunction being ordered, breach of which would attract “serious penal consequences including, in an appropriate case, imprisonment” (at [387]). The potential circumstances in which such restraints may arise are, however, indeterminate.

131. Their Honours observed that a consequence of ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) might be that some reporting of agricultural practice is prevented (when a publisher knows of the antecedent trespassing conduct) but that effect cannot be equated with the statutory purpose.

132. NSW Legislative Assembly Parliamentary Debates (Hansard), 30 March 2022, 8938.

133. NSW Legislative Assembly Parliamentary Debates (Hansard), 30 March 2022, 8940.

134. Reference was also made to Lange at 567.

135. The State intended by this submission its approach to the purpose of the impugned law but this approval is still effective under the assessment of purpose in this judgment.

136. See also Monis at [347] (Crennan, Kiefel and Bell JJ) and Brown at [130]-[131] and [139] (Kiefel CJ, Bell and Keane JJ).

137. Clubb at [481] (Edelman J).

Decision last updated: 13 December 2023