Balancing interests (public safety, executive power and the right to protest): Lees v State of NSW [2026] NSWSC 58
Richard Mitry
The recent Supreme Court of New South Wales decision in Lees v State of New South Wales offers an important illustration of how courts approach the intersection of public safety, executive power, and the right to protest. The case arose from the NSW Government’s decision to declare the visit of Israeli President Isaac Herzog a “major event” under the Major Events Act 2009 (NSW), which enabled the designation of special event zones and the activation of enhanced crowd management powers. The plaintiff challenged the validity of that declaration, arguing in substance that the visit did not qualify as an “event” within the meaning of the legislation and that the measures were disproportionate and improperly aimed at suppressing protest.
The Court rejected those arguments. It held that the concept of an “event” under the Act is broad and capable of encompassing a structured visit by a foreign head of state involving defined locations, participants, and significant operational planning. The Court also found that the declaration was rationally connected to legitimate objectives, including safety, security, and orderly management. Importantly, it concluded that the measures were directed to facilitating the visit rather than suppressing protest, even if they had incidental effects on where and how protest activity could occur.
While the substantive outcome confirms the breadth of executive power to manage large scale and high risk public occasions, the costs decision is equally noteworthy. Despite dismissing the application, the Court indicated that no order as to costs was appropriate. This reflects a well established but carefully applied principle in public law litigation. Although the ordinary rule is that costs follow the event, courts retain discretion to depart from that rule where proceedings involve genuine and significant competing public interests.
That was plainly the case here. On one side were concerns relating to public safety, security, and the state’s responsibility to manage risk in potentially volatile circumstances. On the other were matters relating to freedom of expression, protest rights, and the scrutiny of executive decision making. Where litigation functions as a vehicle for resolving that kind of public interest tension, courts may be reluctant to impose financial consequences on a party simply for seeking judicial clarification of the law.
The decision therefore serves as a useful reminder that public law proceedings are not always treated in the same way as private disputes. Even where a challenge fails, the fact that it raises serious and arguable questions about governmental power and civic freedoms may justify a neutral position on costs. This reflects a broader policy concern that access to judicial review should not be unduly discouraged where matters of community importance are at stake.
More broadly, the case highlights the increasingly complex environment in which governments must operate when planning major public events, particularly those that carry political sensitivity or heightened security concerns. It also underscores the ongoing role of the courts in supervising the legal boundaries of executive action while recognising the practical realities of risk management and public order.
Ultimately, the decision illustrates the difficult balancing exercise that courts are often required to perform. Questions of public safety and security rarely exist in isolation from questions of civil liberty and democratic participation. The role of the court is not to choose between those values, but to determine whether the legal framework governing their interaction has been properly applied. In that sense, the case is a clear example of the law operating at the intersection of governance, rights, and public interest.