The State as Threat: The NSW Court of Appeal versus Emergency Power

I. THE SLEDGEHAMMER AND THE WALNUT

There is a moment in the history of every liberal democracy when its commitments are tested not by distant authoritarians but by its own institutions, its own parliaments, and its own premiers. That moment arrived in New South Wales on Christmas Eve of the year just past, when the Minns government convened an emergency sitting of parliament and rammed through legislation of breathtaking scope — legislation that, within hours, gave the police commissioner authority to ban authorised public assemblies across the whole of Greater Sydney. The pretext was the Bondi Beach terrorist attack. The instrument was a law so blunt, so disproportionate, and so constitutionally reckless that the NSW Court of Appeal — in a joint judgment by Chief Justice Andrew Bell, Justice Julie Ward, and Justice Stephen Free — struck it down as unconstitutional. The verdict was unambiguous. The law had impermissibly burdened the implied freedom of political communication under Australia’s Constitution. The plaintiffs’ barrister had called it using a sledgehammer to crack a walnut. The Court, in rather more measured language, agreed entirely.

This essay is not, at its core, a piece of legal commentary. It is a meditation on something older and more fundamental: the tendency of governments, in moments of genuine or manufactured crisis, to reach for extraordinary power under the cover of public safety; to dress the suppression of dissent in the language of cohesion; and to treat the constitutional architecture of liberty as an inconvenience to be navigated rather than a discipline to be honoured. The Minns government’s Christmas Eve laws were not an aberration. They were a familiar pattern, legible across decades and jurisdictions, of executive overreach that clothes itself in grief and fear while targeting the voices most likely to disturb the powerful. The Court of Appeal did not merely correct a legal error. It defended the democratic inheritance of every person who has ever stood in a public square and demanded to be heard.

II. THE ARCHITECTURE OF THE LEGISLATION

To understand why the Court’s judgment matters, one must first understand what the legislation actually did — and what it was permitted to do by the government that sponsored it. The provisions gave police the power to declare areas in which the authorisation of public assemblies could be refused. This sounds, at first blush, like a targeted and proportionate tool. It was neither. Within hours of the law receiving assent — on Christmas Eve, when lawyers were opening wine and legal academics were absent from their offices — the police commissioner made a declaration covering the entirety of Greater Sydney. That declaration, renewable every fourteen days, was extended four times. It did not lapse until the seventeenth of February: nearly two months during which the organising of authorised protests in Sydney was effectively strangled at the administrative source.

The subject area was eventually narrowed in January to the eastern suburbs and the central business district, with a carve-out — the irony is almost too perfect — for Hyde Park, so that Australia Day celebrations might proceed unmolested. The restrictions remained operative during the visit of Israeli President Isaac Herzog in February, a visit that attracted large and determined protests. The government maintained throughout that the laws had effect only in tightly confined circumstances, and that their purpose — protecting the community and enhancing social cohesion in the aftermath of Bondi — was legitimate. The Court disagreed on both counts. The thresholds for invoking the power were low. The circumstances that could trigger a declaration were not confined to the immediate aftermath of terrorism but could be invoked for reasons unrelated to any terrorist act. And the purpose of preserving social cohesion by discouraging public assembly was, the Court found, constitutionally illegitimate. Not merely disproportionate. Illegitimate.

III. WHAT THE COURT SAID, AND WHY IT MATTERS

The joint judgment of Bell CJ, Ward JA, and Free J is notable not merely for its conclusion but for its reasoning, which engages directly and honestly with the temptation that the government had evidently yielded to. The Court acknowledged, with characteristic judicial care, that a terrorist attack may prompt particularly acute feelings of anxiety and tension within the community. It did not deny the grief of Bondi, nor the legitimacy of the government’s concern about heightened tensions in a city raw with collective trauma. But it refused the government’s central proposition: that social anxiety justifies the suppression of political assembly. “That does not make it any more constitutionally permissible,” the judges wrote, “to seek to address the social repercussions of the event by quelling all public assemblies in a particular area in the name of preserving social cohesion.”

The significance of this passage cannot be overstated. The implied freedom of political communication — derived by the High Court from the structural requirements of Australia’s constitutional system of representative and responsible government — is not a privilege granted by parliament. It is a necessary implication of the constitutional text itself, a freedom that exists precisely because democratic self-governance requires citizens to be able to communicate with one another about political matters. It is, as Hannah Arendt would have recognised, the freedom that makes all other freedoms meaningful: the freedom to appear in public, to speak, to assemble, to make claims upon power in the company of others. When a government uses the machinery of emergency legislation to close down that freedom — even temporarily, even regionally, even in the name of grief — it attacks the constitutional order from within.

The Court’s finding that the purpose of the legislation was constitutionally illegitimate rather than merely disproportionate is, moreover, an important disciplinary signal. Courts sometimes strike legislation down on the ground that its means are ill-suited to its ends — a finding that leaves open the possibility of better-drafted legislation achieving similar goals. The finding of constitutional illegitimacy is different in kind. It says: this is not a place you are permitted to go. Social cohesion, purchased at the price of silencing dissent, is not a form of cohesion the Constitution recognises as worth having.

IV. EMERGENCY POWERS AND THE GRAMMAR OF REPRESSION

There is a long and unhappy tradition of liberal governments reaching for emergency powers in moments of public trauma, and a correspondingly long tradition of those powers outlasting the emergencies that justified them, metastasising into permanent instruments of control. The history is familiar enough to require only the briefest sketch: the internment of Japanese-Australians during the Second World War; the sustained use of counter-terrorism legislation to monitor, harass, and in some cases prosecute Muslim communities in the years following 2001; the various pandemic-era restrictions that were, in some jurisdictions, extended far beyond any epidemiological necessity. The pattern is constant. Crisis generates fear. Fear generates demand for protection. Protection is offered in the form of expanded state power. And the populations most vulnerable to that power are rarely those who demanded it.

The Bondi attack was real. Fifteen people died. The grief of Sydney was genuine, and anyone who denies it is not engaging honestly with events. But grief, however genuine, does not suspend the Constitution. And the question of what the law actually did — as distinct from what the government claimed it was intended to do — is not settled by the sincerity of the premier’s sorrow. Premier Minns urged his colleagues to push through the laws on Christmas Eve. He stood by them after the judgment, insisting they were necessary and important for Sydney at the time. The Court disagreed. And in a democracy governed by the rule of law rather than the rule of sentiment, the Court’s disagreement is not a technicality to be lamented. It is the system working as designed.

The ASIO assessment the government cited — finding heightened community tensions connected to protest activity — is worth examining with some care. Security assessments of this kind are, by their nature, generalisations. They aggregate incidents, attribute them to categories, and produce risk profiles that are inevitably painted with a broad brush. The government’s argument that it was rational to give police power to act in response to intimidation and harassment even where conduct does not pose a serious safety risk is an argument, translated into plain language, for pre-emptive suppression: for acting against speech and assembly not because they have caused harm but because they might, in some configuration, create an atmosphere that someone might find uncomfortable. This is not a principle of proportionality. It is a principle of prophylactic silencing, and the Court was right to refuse it.

V. CONSISTENCY, COMMUNITY, AND THE SELECTIVE MEMORY OF SOCIAL COHESION

One of the most revealing aspects of this episode is the manner in which the language of social cohesion was deployed — and the communities it was deployed against. The declaration covered Greater Sydney almost immediately. It remained in force for the visit of a foreign head of state whose country is the subject of active proceedings at the International Court of Justice for alleged violations of the Genocide Convention, and whose military conduct has generated war crimes investigations of international significance. Large numbers of Australians, from many backgrounds and communities, wished to express their views about that visit and about the conflict it brought into focus. The legislation prevented them from doing so, or placed them in legal jeopardy if they tried.

One is entitled to ask: in whose image is social cohesion here being constructed? The implied freedom of political communication exists not to protect popular speech — popular speech requires no constitutional protection — but to protect speech that disturbs, that challenges, that makes those in power uncomfortable. The great anti-war marches, the land rights protests, the demonstrations against apartheid, the civil rights movement’s public assembly in the face of state hostility: none of these were, at the moment of their occurrence, conducive to social cohesion as those in power understood it. All of them were, in retrospect, constitutive of a more just and honest public life. The present case involves contested and intensely political questions of international law, humanitarian catastrophe, and Australian complicity. The government’s legislation did not create cohesion. It created silence — and silence enforced by state power is not cohesion. It is suppression wearing cohesion’s clothing.

VI. THE PLAINTIFFS AND THE COURAGE OF DEMOCRATIC STANDING

It is worth pausing to note who brought this challenge, and what it cost them. Elizabeth Jarrett of the Blak Caucus, Joshua Lees of the Palestine Action Group, and Michelle Berkon from Jews Against the Occupation ’48 launched the challenge in early January, within days of the laws coming into force. They argued the provisions had a chilling effect on speech — a formulation that is, in constitutional law, both technical and precisely accurate. Laws do not need to result in mass prosecutions to suppress speech. The awareness that a declaration might be made, that assembly might be criminalised, that police have power to act, is sufficient to deter the exercise of rights that are not being formally removed but are being rendered practically dangerous. The plaintiffs named this. They stood in the Banco Court of New South Wales, the state’s largest, with supporters draped in keffiyeh scarves, and they waited for the law to vindicate what they had always known: that the Constitution does not permit the government to silence them in the name of keeping the peace.

The diversity of the plaintiff group is itself a comment on the nature of this struggle. A Blak Australian activist, a Palestinian solidarity organiser, a Jewish anti-occupation campaigner: these are not people who agree on everything, or perhaps even on very much. What they share is a commitment to the proposition that the right to appear in public, to speak, to assemble, to dissent, belongs to all of them equally — and that a government which abridges it for one abridges it for all. Outside the court, Lees called it a resounding win and called on the Premier to resign. The Premier, for his part, defended the laws. The Shadow Attorney-General, Damien Tudehope, said the judgment highlighted the government’s incompetence — a criticism that, whatever its partisan motivation, has the merit of being accurate.

VII. DEMOCRACY’S SELF-DEFENCE

Liberal democracy is not a stable condition. It is an ongoing achievement, continually threatened by the temptations of those who govern — the temptation to silence opposition in the name of unity, to expand power in the name of safety, to treat constitutional constraints as obstacles rather than protections. The great theorists of democratic fragility, from Tocqueville through Arendt to the present generation of scholars tracking democratic backsliding in the V-Dem indices, agree on this: that the most dangerous erosions of democratic practice come not from external assault but from internal accommodation, from the slow habituation of citizens and officials to the idea that emergency justifies exception, and that exception need not be temporary.

The NSW Court of Appeal has, in this judgment, performed one of the most important functions available to an independent judiciary in a democratic system: it has said no to the government, clearly and without equivocation, on a matter of fundamental constitutional principle. It has refused to allow grief to serve as cover for the abridgment of liberty. It has insisted that the implied freedom of political communication is not a fair-weather right, available when the speech is comfortable and revocable when the speech is difficult. It has held, with the authority of the state’s highest court, that social cohesion achieved by suppressing dissent is not a constitutionally legitimate aim.

This matters beyond New South Wales. It matters beyond this particular conflict, this particular visit, these particular plaintiffs. It establishes — or rather, reaffirms — that the Constitution is not a document to be set aside in moments of national feeling. It is precisely in those moments that it does its most essential work. The right to protest is not a concession of the powerful to the powerless. It is a structural feature of the democratic order, as fundamental as the franchise and as easily lost. The Court has reminded us of this. The government would do well to listen.

CODA: ON THE USES OF EMERGENCY

There is a final irony worth noting. The government’s legislation was passed on Christmas Eve, when scrutiny was minimised, debate was compressed, and the normal processes of parliamentary deliberation were suspended in the name of urgency. The Shadow Attorney-General noted that the Liberals and Nationals had warned against rushing complex legislation before it could be thoroughly examined. The warning went unheeded. The result was a law that did not survive constitutional challenge — a law that, had it been subjected to proper examination, competent legal advice would almost certainly have identified as vulnerable. The haste was not incidental. Emergency, as a political mode, is designed to foreclose the deliberation that might produce wiser outcomes. It is designed to make legislation happen before lawyers can read it, before academics can comment on it, before the public can form a view.

The Christmas Eve sitting of the NSW parliament was, in this sense, the perfect emblem of what the legislation represented: the use of crisis to circumvent the ordinary disciplines of democratic governance, in pursuit of powers whose constitutional foundations were always shaky. The Court has corrected the error. The premier has defended it. The plaintiffs have won. And the implied freedom of political communication — that quiet, structural guarantee written into the Constitution not as a bill of rights but as a logical necessity of representative government — has, for now, held.

For now. The price of liberty, as the old formulation has it, is eternal vigilance. The Minns government’s experiment in emergency suppression will not be the last of its kind. The next crisis will come, as crises always do, with its own urgency and its own rhetoric of necessity. The question is whether the memory of this judgment — and the courage of the plaintiffs who forced it — will be sufficient to slow the reach of the next hand that moves toward the emergency lever. One hopes. One is not, on present evidence, entirely confident.