The Palestine Action Group and other organisers of Sunday’s banned march on the Sydney Opera House have achieved a memorable outcome.
By bringing legal action that invoked a constitutional question, they ensured their argument would not be heard by a single judge but would be sent to the most senior court in NSW – the Court of Appeal.
That opened the door for the Court of Appeal to restore balance to the law governing one of the most important human rights: the right to protest.
It did so by reinterpreting the NSW legislation governing street protests in a way that gives judges the power to prevent some future protests.
It has injected some long-overdue backbone into this area of law which had previously been viewed by protest organisers as a paper tiger, designed to facilitate all protests, not prevent some from taking place.
This is the most important aspect of Thursday’s decision.
It is far more significant than the other aspects of this decision: the banning of Sunday’s planned protest at the Opera House; and the exposure of the organisers and supporters of the protest to potential legal liability – including the possibility of jail time – if they ignore the ban.
The new approach to street protest law is the lasting legal legacy of the Palestine Action Group and the other organisers of the protest at the Opera House.
There is no avoiding the fact that the three-judge Court of Appeal has the authority to change the interpretation of a statute in a way binds all judicial officers in NSW.
There is also no avoiding the fact that this would never have happened if the Palestine Action Group and other protest organisers had not filed a cross summons on October 6 challenging the validity of Opera House by-laws on constitutional grounds.
As Thursday’s judgement says: “It was the possibility of a constitutional argument being run that resulted in the removal of the proceedings to the Court of Appeal for an urgent hearing.”
Had this case remained before a lower court it would almost certainly have been dealt with using the same weak interpretation of the street protest laws that had been used in recent cases, but which has now been discarded.
This is not judicial activism. It is actually the reverse.
It means a provision of the Summary Offences Act that gives judges the power to issue prohibition orders against some proposed protests in public places will, at long last, actually mean what it says.
This is a clean break from the past.
In August Justice Belinda Rigg followed earlier rulings by single judges when she said the consequences of issuing a prohibition order “is not that an assembly would be prevented from taking place” but that the participants would be deprived of legal immunity from certain offences.
Much now depends on whether the police and NSW government enforce the law as outlined in the court’s order.
But those still thinking of protesting at the Opera House should consider the risks.
The court made it clear that defying its order could result in contempt proceedings. That has direct implications for the three defendants in this case who wanted the protest to go ahead.
Those people are Amal Naser from the Palestine Action Group, Shovan Bhattari from an organisation called Students for Palestine and Michelle Berkon from an organisation calling itself “Jews against the occupation 48”.
The judges also made it clear that potential liability for contempt could extend to others.
They cited earlier cases in which judges determined that liability for contempt “may extend, in certain circumstances, to persons who were not parties to the proceedings in which the order was made”.
So if protesters leave Hyde Park on Sunday and march through Sydney to the Opera House anyone who knows about the prohibition order is potentially liable for contempt of court.
Extending legal liability to the protesters as well as the organisers should not be seen as some sort of discriminatory ruling on political grounds.
It is an orthodox application of the law of contempt and is in line with the approach taken by the High Court in 2004 in a case known as Zhu.
In that case five High Court judges unanimously decided that when courts intervene against people who are not personally bound by a court order “those persons are not liable as accessories who aided and abetted the persons bound by the order, but are directly liable for independent contempts committed by themselves in obstructing the course of justice”.
If the protest goes ahead, the court’s judgement implies that the participants might also risk criminal prosecution.
The judgement recounts that police had pointed out that prohibiting the protest “may have significance for the operation of section 545C of the Crimes Act 1900 (NSW) which concerns knowingly joining, or continuing in, an unlawful assembly”.
Convictions under that provision attract up to six months in prison.
This decision is certain to disappoint supporters of the Palestine Action Group and the other organisers.
But they need to keep in mind it has nothing to do with the politics of the war in Gaza. It is based on the clear threat to public safety of conducting a large protest on a small site with few exits.
They also need to keep in kind an important point made by the judges: obeying the orders of a court is a central aspect of the rule of law in every democratic society. We cannot pick and choose.
