Warren Pyke
In the aftermath of the terrorist attack at Bondi Beach on 14 December 2025, the New South Wales State government enacted the Terrorism and Other Legislation Amendment Act 2025.
By the Act, the Commissioner of Police was authorised to make a “public assembly restriction declaration” which would restrict the holding of public assemblies within a declared area.
On 24 December 2025, the commissioner declared that the holding of public assemblies was restricted in central Sydney and areas to the north, south, east and west of the city, extending the area covered by the declaration on a number of occasions in January and February 2026. Authorisation could be obtained to hold a public assembly within the declared area.
The challenge
The plaintiffs in Jarrett v State of New South Wales [2026] NSWCA 62 challenged the validity of the statutory scheme as created by the Act, on the basis that it infringed the freedom of political communication under the Commonwealth Constitution.
Each of the plaintiffs had a history of organising and participating in public assemblies and a special interest in challenging the validity of the statutory scheme because of its potential impact on their ongoing protest activities. The plaintiffs argued that a declaration could be valid only if it fulfilled a constitutionally legitimate purpose, and that the means adopted were reasonably appropriate and adapted to achieve that purpose.
The court observed that the legislature in enacting the Act perceived that community tensions were running high after the Bondi Beach attack, as may generally be the case after terrorist incidents. The legislature also perceived that public assemblies in the context of such community tension had the potential to undermine social cohesion and place the community at risk. This was the mischief to which the Amending Act was directed.
The limitation
The power of the State Parliament to pass laws that restrict communication on governmental or political matters is subject to a fundamental limitation, derived from the Commonwealth Constitution.
The first step for an inquiry into whether an impugned law infringes the implied freedom of political communication under the constitution is to ascertain if the law imposes a burden on the freedom of political communication.
Such a law is valid only if the burden is imposed to fulfil a constitutionally legitimate purpose and the means adopted are reasonably appropriate and adapted to achieve that purpose (citing among other High Court authorities McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34).
The court observed that it is well recognised that public assemblies about government or political matters are a species of communication that engages the implied freedom. Peaceful protest is indispensable to the exercise of political sovereignty by the people of the Commonwealth.
Moreover, 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. Suppressing public debate of certain kinds may be a means to a legitimate end, but it cannot be a legitimate end in itself.
Indiscriminate restrictions
The statutory scheme failed the constitutional test. It was not a legitimate purpose, in the constitutional sense of being compatible with the system of representative and responsible government entrenched by the constitution, because it sought to discourage all forms of public assembly across a nominated geographical area, notionally to preserve social cohesion.
It is not enough that the legislature perceived the need for strong action to preserve the cohesion and safety of the community in the wake of an exceptionally traumatic public event.
The system of government established by the Commonwealth Constitution does not permit the State to pursue such an objective by authorising the executive to impose sweeping and indiscriminate restrictions on all public assemblies, without any mechanism for tailoring such restrictions to assemblies that have the particular consequence of causing a part of the community to feel fearful or threatened (citing among other High Court authorities, Unions NSW v State of New South Wales (2023) 277 CLR 627; [2023] HCA 4).
The court held that even if preserving social cohesion were a legitimate purpose, the means chosen by the legislature were not reasonable nor were they rationally adapted to achieve that purpose.
Moreover, the statutory scheme was indiscriminate. It did not require, or even allow for, consideration of the characteristics or conduct of any particular public assembly, nor did it allow for consideration to be given to the nature or severity of any threat to the community that could be said to arise from any particular assembly.
A blanket restriction on all public assemblies within a declared area was apt to capture assemblies that posed no threat to others, even in terms of social cohesion. The impugned provisions were held to be invalid and the court made declarations to that effect.
Analysis
I comment as follows. The broad reasoning of the court would apply to any challenge to restrictions on public gatherings and the associated freedom of speech in New Zealand, owing to the protections of such rights under the New Zealand Bill of Rights Act 1990.
Secondly, this is not the first, nor will it likely be the last, example of a hasty reaction to a crisis that consists of a government resorting to indiscriminate and misconceived coercive measures.
It demonstrates that there are those in government who may be over-activated by a desire to protect the public from all or any risks that they may imagine will arise in a crisis. This leads to some modern legislators enacting first, and making a careful assessment later – particularly about whether the proportionality of proposed measures has been accurately calibrated against the actual risk to the public, when weighed against fundamental civil rights.
For rights to matter, they must matter to those in government and not merely be aspirational statements in constitutions and bills of rights.
In this case, the crisis emerged from the actions of certain individuals, against which there was little or no evidence of a future risk to the public.
Moreover, the government did not appear to have assessed whether there was any real risk of harm to the public arising from any public unrest that might occur in the course of organised street gatherings. What appears to have driven by the decision-making was panic, and perhaps the political exigencies of curtailing fundamental rights, as a way to avoid any and all risks to the public, real or apparent.
Application to New Zealand
This case demonstrates what was recently on full display during the covid crisis, both in Australia and New Zealand: when such a crisis arises, rights that are enjoyed by the public at large are prone to be sacrificed on the altar of public safety.
In such crises, the real or apparent benefits of government coercive measures become the paramount consideration for officials and politicians.
However, the public in free and democratic societies are entitled to expect a more sophisticated response from politicians, particularly that they do not surrender power to officials and advisors, who should be “on tap, not on top.” (George William Russell, 1910, editor of The Irish Homestead, a quip often, it appears unreliably, attributed to Churchill, although it was deployed by Felix Frankfurter, a future member of the US Supreme Court, in a book review he penned for the March 1924 edition of The Harvard Law Review).
If basic rights are not to be a temporary privilege, measures which restrict or abrogate them must receive close scrutiny by policy makers, for proportionality and rationality and – just as important – legislators must be made to show that rights-infringing measures represent a demonstrably justified basis for abrogating basic rights, even, or perhaps more particularly, in a crisis.
The New South Wales Court of Appeal’s approach to the case required the government to demonstrate that the measures rolled out by the Act were rationally connected to its purposes and were a proportionate response, in view of the importance of the constitutional rights at issue.
This approach should serve as guidance for courts everywhere, when confronted by such challenged measures in a crisis.
If basic rights are to have any meaning in a free and democratic society, what matters is how they are applied by judges to the exercise of executive or legislative power in a crisis, when the rights of large groups or of the whole population are at stake.
Warren Pyke
Warren Pyke is an Auckland barrister, a member of The Law Association’s Council and a member of The Law Association’s Public & Administrative Law Committee
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