There is nothing wrong with criticising judges when they deserve it.

But it is unfair to criticise Justice Belinda Rigg of the NSW Supreme Court for “authorising” last Sunday’s takeover of the Sydney Harbour Bridge for a pro-Gaza protest.

What happened on the bridge is not the result of judicial activism or bias. It is the result of a flawed permit system for street protests that smoothed the way for a great national icon to be used for propaganda purposes.

It is also curious that there is no sign in Rigg’s judgment that anyone bothered to tell the judge about legal changes in 2022 that protect major facilities.

That new law, Part 4AF of the Crimes Act, imposes criminal penalties on protesters who block access to major facilities.

Part 4AF was inserted into the Crimes Act by an amendment that also changed the Roads Act, which now imposes criminal penalties under section 144G for obstructing major bridges – including the Harbour Bridge.

There were only two parties to last Friday’s rushed hearing before Rigg: the police and the organisers of the bridge protest, the Palestine Action Group.

If either party did bring up those 2022 legal changes, they did not rate a mention in the list of legislation considered by Rigg.

The judge might have appreciated it if someone had mentioned Roads Act regulation 48 which says: “A person must not, on the Harbour Bridge … conduct or participate in any public assembly or procession.”

Internationally, the Harbour Bridge is one of the most evocative symbols of Australia. It is far more widely recognised than the flag and probably ranks just behind the Opera House.

It represents all of us – and that means both sides of the debate over the war in the Middle East, including those who were intensely alienated by Sunday’s event.

These great national symbols need to remain aloof from divisive political arguments. That means law reform – as hinted at this week by NSW Premier Chris Minns.

But it also means making use of the laws that are already on the statute book – like that new provision in the Roads Act.
The organisers of Sunday’s event chose the Harbour Bridge because they knew a site of national significance would amplify their message.

The Palestine Action Group, like everyone else in this country, enjoys an implied constitutional right to political free speech. But that right is not absolute. It can be regulated for legitimate purposes.

And what could be more legitimate than ensuring our national symbols remain neutral and above the political fray?

That does not mean gagging those who would exercise their right to freedom of speech. It means more effective use of the law to determine where that freedom can be exercised.

Much of the criticism of Rigg has been based on the misconception that she had the power to prevent last weekend’s protest. She did not.

Because the case before her did not appear to invoke those 2022 legal changes, she was left to deal with it under the permit system that governs street protests.

That system is outlined in Part 4 of the Summary Offences Act which has serious weaknesses that need to be addressed as part of any reform process.

The first problem is that the statutory provision at the heart of the permit system does not mean what it says – which is why the judge has been unjustly blamed for allowing the protest to proceed.

When section 25 of the Act says “prohibition” orders can be issued by a judge, what it really means is that any such order will not stop a street protest from taking place.

And that leads to the second problem.

Because the organiser of the Harbour Bridge protest gave police at least seven days notice of the protest, the takeover of the bridge was automatically “authorised” – unless Rigg ruled otherwise.

Yet even if she had ruled against the protest organisers and issued a “prohibition” order, it would have made no difference. The march would still have gone ahead, which is made very clear in her judgment.

All that would have happened is the participants would have been stripped of a limited immunity from prosecution for some offences.

In retrospect, it’s a great pity nobody appears to have asked Rigg to decide whether the recently enacted criminal offence in section 144G of the Roads Act had any bearing on the matter at hand.

To be fair to everyone concerned, one of the main problems with the permit system is that it usually requires the courts to make rushed determinations with all the hazards that entails.

This case was no different.

The proposed takeover of the bridge only came before Rigg last Friday afternoon. Evidence and submissions concluded at 5pm and she provided an oral decision on Saturday.

Her written judgment was not made available until Monday.

With a little more time, the effect of that change to the Roads Act might have come to someone’s attention. As it is, parliament enacted those changes in 2022 with the clear goal of preventing protesters from doing exactly what they did last weekend.

Freedom of speech is of fundamental importance. But parliament has passed a law making it clear that the Harbour Bridge is not the place for protests.

That law remains on the statute book. Had it been made clear that it would be enforced, the Palestine Action Group could still have protested against the war in Gaza.

Just not on the Harbour Bridge.