NSW should think twice before banning ‘globalise the intifada’ after court struck down anti-protest law, legal expert says

New South Wales’ highest court ruled in favour of the Palestine Action Group and Blak Caucas on Thursday, striking down an anti-protest law introduced after the Bondi beach terror attack that gave police the power to restrict marches, including the anti-Herzog rally in February.

The full bench of the court of appeal – which included chief justice Andrew Bell, and justices Julie Ward and Stephen Free – found discouraging all protests in order to protect social cohesion impermissibly burdened the implied constitutional right to freedom of political communication.

The justices wrote that the notion that the community can and should be protected from political expression by others because it might be “upsetting, inflammatory and divisive” wasn’t legitimate under the constitution.

“Suppressing public debate of certain kinds may be a means to a legitimate end, but it cannot be a legitimate end in itself,” they wrote.

In January, a NSW parliamentary inquiry recommended banning the phrase “globalise the intifada”, but only when it is used to incite hatred, harassment, intimidation or violence. It stopped short of calling for an unqualified ban or a ban on phrases such as “from the river to sea”. Chris Minns’ office confirmed on Friday he still planned to outlaw the phrase “globalise the intifada”, depending on how Queensland’s ban on the phrase, introduced earlier this year, played out.

Anne Twomey, a constitutional expert at the University of Sydney, said if she were the Minns government, “having read this judgment, I would be very, very reluctant to go ahead with legislation banning certain slogans”.

She said the judgment may also make it easier to challenge Queensland’s ban on the phrases “from the river to the sea” and “globalise the intifada”, even though the ban was in a different jurisdiction.

Twomey said the judgment likely meant any future attempts by the NSW government to stymie speech or protest for similar reasons, including banning slogans, “is not going to wash with this court”.

“I think that will certainly have flow-on effects for attempts to ban political slogans and also attempts to do more regulation of political protests, unless [the government] does it for a purpose of actually protecting from violence or protecting the community,” she said.

After Thursday’s judgment, Twomey said any slogan ban should be directed at stemming risks of violence, and not merely because it causes distress or offence.

“If what the government is trying to do is just to stop people being upset, or some sort of vague notion of social coherence, then under this judgment, that’s just not going to be sufficient to justify the law,” Twomey said.

Findings impact on anti-Herzog protesters

The now-struck-down law prevented the use of the state’s permit-style system that protects protesters from being charged by NSW police when marching.

It was in place in parts of Sydney’s CBD during the rally against the Israeli president, Isaac Herzog’s visit in early February, which turned violent and triggered a police watchdog investigation into allegations of widespread police misconduct.

The court’s finding has raised questions over what this could mean for the 26 protesters who have so far been charged with various offences, including assaulting police, resisting arrest, and using offensive language.

Majed Kheir, one of the solicitors representing the protesters who is celebrating the win as one of the greatest victories for civil liberties in Australian history, said it was possible the lawyers may now make an application for police to withdraw the charges.

“It’s open to a court to interpret, but it may mean that police on the night were acting beyond the scope of their duties and their powers, because, in accordance with today’s judgment, those powers were unconstitutional,” he said.

“I think [criminal defence lawyer] Nick Hanna said it outside court, and I certainly agree, it is one of the biggest wins for civil rights and civil liberties in Australian history.”

Police can withdraw the charges of their own accord. In response to a question from Guardian Australia, a NSW police spokesperson said the force was working through the judgment.

Sam Lee, a supervising solicitor at Redfern Legal Centre, said the question of whether the judgment would impact the charges was not straightforward. This is due to a number of people not facing summary offences charges, which protesters would have potentially been protected from had the Pard not been in place.

Another complicating factor was that the area was placed under a major events declaration for the duration of Herzog’s visit, giving police expanded move-on and stop-and-search powers.

“[Withdrawing charges] could be based on a case-by-case basis, depending on what powers they were charged under,” Lee said.

Still, Lee said the judgment was likely to have far-reaching consequences.

“I think it puts brakes on the Minns government’s ability to use executive power to minimise people’s rights to protest,” she said.