The next time someone criticises the NSW government for failing to do enough to fight anti-semitism, consider who is really to blame.

Last week a court struck down a key part of that state’s efforts to protect the right of Jews to practise their religion free from intimidation.

A law approved by parliament in February was ruled invalid at the urging of the Palestine Action Group which persuaded a judge it was an improper assault on that group’s right to freedom of political speech.

As a result, police have been stripped of the power to issue “move on” orders to those taking part in unauthorised protests and processions in close proximity to places of worship.

This weakens the government’s response to anti-semitism and strengthens the hand of street protesters.

There is still plenty of muscle left in other parts of those February changes which are part of the Crimes Amendment (Places of Worship) Act.

It is still an offence, for example, to obstruct or harrass people outside places of worship. But that’s not the point.

There is no doubt that the “move on” law handed police much broader powers. There is also no doubt that this restricted the implied constitutional freedom of political communications.

But that freedom is not absolute. It needs to be balanced against other rights. And that is exactly what happened when this law was designed by Minns and his Attorney-General, Michael Daley.

The Supreme Court simply disagreed with the balance that had been approved by parliament. So who is better placed to decide where the balance should be struck?

Before Minns and Daley produced their reforms, the balance between freedom to protest and freedom of religion was massively out of kilter. People were suffering as a result.

Australians of the Jewish faith were being intimidated in a way that impeded their ability to practise their religion in safety.

The issue here goes beyond the fate of this particular law. It raises the question of who is best placed to make adjustments when it becomes clear that freedom of political speech has become weaponised?

In this case, parliament responded to changing circumstances after considering the views of all stakeholders and reaching a compromise.

The courts are is a very different position. Unlike parliament, they cannot consider the views of the broader community, only those of the parties to each case.

And when it comes to balancing freedom of political speech against other rights, their position suffers from limitations.

Freedom of political speech is not written in the text of the Constitution that was approved at Federation.

According to the High Court it is “implied” in that document and is therefore binding on all other judges – including the judge in this case, Anna Mitchelmore.

The problem arises when it comes to balancing freedom of political speech against freedom of religion, which is not protected by a federal statute or an equivalent to the implied freedom of political speech.

So while the NSW parliament decided the problem was so serious the police required broad new powers, the judge considered the implied freedom and disagreed with the NSW parliament.

She concluded there were other ways of achieving the government’s goal that would impose fewer restrictions on freedom of political communication.

It’s unfair to blame the judge. She was applying the law as outlined by the High Court and had no choice in the matter.

But consider the information base available to the two competing decision-makers in this matter – parliament and the judge.

There were just two parties before Justice Mitchelmore: Joshua Lees, an organiser with the Palestine Action Group, and the NSW government.

The government designed this package after considering the views of key stakeholders including the NSW Faith Affairs Council, the NSW Jewish Board of Deputies, and Jillian Segal who is the federal government’s special envoy to combat anti-semitism.

There was clear evidence available to the government that the current arrangements were out of kilter. The previous balance between the two rights – freedom of political speech and freedom of religion – had been lost.

Evidence presented to the Supreme Court shows 909 “public assemblies” had been held in Sydney in 2023 and another 970 last year.

This was just part of the context that led to February’s laws. There had also been attacks on synagogues and associated facilities as well as two particularly notorious protests – one just outside the front entrance to Sydney’s Great Synagogue and the other across the street.

It was clear that the balance needed to be restored after the excesses that were unleashed after October 7, 2023.

As Minns told parliament in February: “ We are here today as a parliament – as representatives of this open and tolerant state – to say in an unambiguous way that this campaign of hatred will fail.

“It will fail because the Jewish community is strong. It will fail because our Jewish friends have an entire state behind them with the laws and resources and the solidarity needed to destroy the poison of antisemitism wherever it takes root,” Minns said.

What Minns and Daley did was entirely justified and should be seen as a badge of honour, regardless of last week’s decision.

There was a clear need to adjust the rights of street protesters. And if that, in the view of parliament, meant handing greater discretion to police to order protesters to move on, then so be it.

Society has changed since October 7, 2023. The law needs to keep up.