The campaign to criminalise the Palestinian solidarity movement has suffered a serious blow, with the latest of the NSW government’s anti-protest laws being struck down in a constitutional challenge brought by the Blak Caucus and the Palestine Action Group.
For two and a half years, hundreds of thousands of people have mobilised around Australia to oppose the endless genocide and war, in Gaza and beyond, being waged by Israel and the US. For that entire time, Australian governments, both federal and state, have stood with the war criminals, continued supplies of Australian-made weapons components to keep the slaughter going and tried to crush and criminalise anti-war opposition at home.
Chris Minns’ NSW Labor government has often led this charge, ramming through a series of anti-protest laws targeting the Palestine movement. This agenda did not begin with the Bondi massacre, but escalated in its wake, as the ruling establishment sought to exploit this tragedy to blame the Palestine movement, without a shred of evidence or logic, and to create a more authoritarian society.
On Christmas eve, Minns rammed through laws that gave the police commissioner the power to ban street marches, and even many static rallies or assemblies, about any cause whatsoever, in the entire state, for up to three months at a time, following a terrorist attack anywhere in the world. Minns said he wanted a “summer of calm”, and that these laws were about promoting what has become that favourite slogan of dictators: “social cohesion”.
Then it was announced that genocide-inciting Israeli President Isaac Herzog would soon be touring the country, and it became crystal clear what these laws were really about. “Calm” and “cohesion” mean to the pro-war establishment something akin to what “peace” means to Israel—the “calm” of a silenced, defeated population, the “peace” of a graveyard.
But tens of thousands of people had a different idea. They thought they should have the right to protest against the president of a country committing genocide, and against their own government rolling out the red carpet for him. And on 9 February, they turned up in droves to Sydney Town Hall, in the face of all the threats and the lies. Not to take anything away from the absolutely brilliant and tireless legal team that won this case, but that was surely the day these laws were really defeated, even if we didn’t know it yet.
A few things are noteworthy about the judgement. First is how emphatic it is. This was a unanimous verdict by a three-judge panel of the NSW Court of Appeal, including the chief justice. An appeal to the High Court would only be inviting further defeat and embarrassment for the government. Second, the government lost its case on more than one ground. The court found that the laws were both “not reasonably appropriate and adapted to achieving” their stated purpose, being a “blunt tool”. More fundamentally, and in a blow to the “social cohesion” justification for a police state, the court said:
“It is not a constitutionally legitimate purpose to seek to discourage all forms of public assembly across a nominated geographical area to preserve social cohesion, on the grounds that the very act of holding public assemblies is apt to cause tension and division in the community. The system of representative and responsible government entrenched by the Constitution, involving a free and true choice by the electors, entails acceptance of the potential for disharmony, incivility and disruption that is part and parcel of democratic intercourse.”
This victory has several important ramifications. First is for all those arrested at the protest against Herzog. The police have outrageously made dozens more arrests since that night, as they trawl through video footage and try to maximise the number of charges laid. These arrests have included shocking dawn raids, with protesters’ doors busted down by heavily armed special operations police units. This is the police desperately trying to find some charges that will actually stick, to create a narrative of violent protesters and to undermine the Law Enforcement Conduct Commission investigation into police brutality.
In the wake of this court’s verdict, we must demand that all those charges be dropped immediately. Given that the powers used to block the rally were invalid, our protest and planned march from Sydney Town Hall to NSW parliament was in fact an authorised protest. This verdict also strengthens the case to overturn the government’s ludicrous invocation of the Major Event Act, which is the other legal fig leaf the police are clinging to to justify their actions.
Second, the verdict strengthens the ability of everyone assaulted, injured, wrongfully arrested and whose democratic rights were violated by NSW Police on 9 February to make civil claims for potentially large amounts of compensation, which they absolutely deserve.
Third, the decision is a blow to any further steps Minns was planning to stifle democratic rights. In particular, his plans to pass laws to criminalise phrases like “globalise the intifada” must surely now be shelved. And this emphatic judgement must help a looming challenge to the appalling “banned phrases” laws in Queensland, which potentially outlaw people singing the John Farnham lyrics, “From the river to the sea”. The next major battle will be to stop the royal commission from establishing more lies and legal restrictions against the Palestine movement.
Something must be said about the Labor Party. Given Chris Minns’ record of lying to the public and eroding our democratic rights, we are calling for his resignation. Of course, Minns is well beyond shame, and probably already has future lucrative career options lined up in the weapons or real estate industries. But this isn’t about Minns alone. It was revealed in Senate estimates that every single member of Minns’ cabinet backed these undemocratic and unconstitutional laws. Not a single Labor MP voted against them. The Labor Party is a stinking, unsalvageable and nasty machine, where principles go to die.
Minns’ approach of doing a Keir Starmer, pandering to the right and the ruling class and chest-beating about law and order may win him another election, but he is only paving the way for a seismic shift to the right and One Nation.
In that context, as good as this court victory is, it is no substitute for the political struggle that is needed: the ongoing struggle for a free Palestine, for the right to resist militarism and war and for a socialist alternative to the rotten status quo.
Josh Lees is a spokesperson for the Palestine Action Group.
