New criminal laws concerning protests in NSW
This commentary by Manasa Renduchinthala
With 2025 being a year of heightened political tensions, protests have been front and centre in our newsfeeds. Unlike the US, where the right to assemble and protest is enshrined in the First Amendment, in Australia there is no explicit statutory right to protest. Instead, the legal foundation is based on common law freedom of peaceful assembly. This is supported by the implied freedom of political communication under the Australian Constitution. This permits peaceful protests but does not protect against being charged for protest activities that violate other laws.
The exception to this lies in Part 4 of the Summary Offences Act 1988 which outlines a process for protestors to seek authorisation for public assembly from the Commissioner of Police. As a result, the protestors can be provided with immunity from being charged under the Summary Offences Act for offences such as obstructing traffic.
This system of ‘protest permits’ has been highly debated. The NSW Police have previously opposed multiple Form 1 applications, including the Rising Tide protest against a coal port. There are no specific criteria as to when the police should oppose a Form 1. While it’s often opposed on grounds of safety or disruption, many human rights groups argue, the amount of discretionary power given to police to be too broad potentially targeting political activism.
Previous reforms empowering police to direct protesters to move on or desist if near a place of worship was ruled invalid by the NSW Supreme Court on the basis that this would burden the implied constitutional freedom of political communication.
The new laws attempt to close these gaps by implementing stricter sentencing guidelines and more intentional wording of legislation. These include:
1. An amendment to the Crimes Act 1900, to include anybody that “indicates support for Nazi ideology by invoking imagery or characteristics associated with Nazism without reasonable excuse and in public”
2. Nazi slogans, chants and symbols are examples of such behaviour and may now be prosecuted in the District Court instead of the lower Local Court.
3. Anyone found guilty of violating the ban under the revisions faces a maximum punishment of $11,000 or up to a year in jail.
4. If the crime is done next to a synagogue, Jewish school, or the Sydney Jewish Museum, the punishment will increase to $22,000.
5. Police will also have new authority to require criminals to remove alleged Nazi symbols; failure to do so may result in a $2200 fine or three months in jail.
6. Additionally, if someone is reasonably suspected of being able to assist with investigations into Nazi-related offenses, police will have the authority to order them to "reveal their identity."
7. Finally, charges might be brought against anyone, even if the police had not authorized a public gathering.
The Legislative Assembly Committee on Law and Safety is anticipated to review the modifications, which will eliminate a three-year sunset clause for racial hatred offenses.
The strengthened laws aim to curb extremist expression, yet their broad wording and expanded police powers risk overreach. Elevating cases to higher courts and imposing steep penalties may deter harmful conduct but could also curb legitimate expression and raise concerns about proportionality, clarity, and civil liberties.
The conversation around protest laws reflects the ongoing push and pull between the executive, legislature, and judiciary as they perform the delicate balancing act of ensuring that democracy and freedom of political communication can exist, while also preventing violence and hate speech.