Police powers and political protest - Lees v State of NSW [2025] NSWSC 1209
Tony Baynie
The Supreme Court of New South Wales’ decision in Lees v State of New South Wales [2025] NSWSC 1209 is a significant constitutional case concerning the limits of police power and the protection of political protest under the implied freedom of political communication. The case involved a challenge by protest organiser Joshua Lees to section 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), which allowed police to issue move-on directions to protesters occurring “in or near” a place of worship, even where the protest was otherwise genuine and peaceful. The Court ultimately declared the provision invalid, finding that it imposed an impermissible burden on the implied constitutional freedom of political communication.
Under LEPRA, police generally have the power to give directions to individuals in public places where their behaviour obstructs others, causes fear, or constitutes harassment or intimidation. However, the legislation historically recognised the importance of democratic participation by limiting this power in relation to genuine protests, demonstrations, and assemblies. Section 200(5), introduced in 2025, created an exception to this protection, allowing police to issue directions to protesters near places of worship even if the protest itself was otherwise lawful and peaceful. The provision was enacted in response to concerns about protests targeting religious institutions and was intended to protect individuals from intimidation or interference when accessing places of worship.
The central legal issue was whether section 200(5) impermissibly burdened the implied freedom of political communication, which is a constitutional principle derived from Australia’s system of representative and responsible government. This freedom does not create a personal right to free speech, but instead operates as a limitation on legislative power. Laws that burden political communication must serve a legitimate purpose and must be proportionate, that is, reasonably appropriate and adapted to achieving that purpose without unnecessarily restricting political communication.
The Court accepted that the purpose of section 200(5) was legitimate. Protecting individuals from harassment or intimidation while attending places of worship is clearly compatible with the maintenance of Australia’s democratic system. However, the Court found that the provision went further than necessary to achieve that objective. In particular, the provision allowed police to issue directions to protesters merely because they were near a place of worship, even if the protest was unrelated to the place of worship and even if the conduct did not affect individuals attending the religious site. This meant that protesters could be removed from traditional protest locations in city centres, many of which are located near churches, synagogues, or other religious institutions.
Justice Mitchelmore emphasised that protest is a central form of political communication and plays a vital role in democratic society. The ability to assemble in public places, express dissent, and bring political issues to public attention is essential to ensuring that citizens can participate meaningfully in the political process. While the state has a legitimate interest in protecting public safety and religious freedom, restrictions on protest must be carefully tailored. The Court found that section 200(5) imposed a broader restriction than necessary, and that less restrictive alternatives were available, such as limiting police powers only to situations where protesters were actually interfering with access to places of worship.
As a result, the Court concluded that section 200(5) was not reasonably appropriate and adapted to achieving its legitimate purpose and therefore impermissibly burdened the implied freedom of political communication. The provision was declared invalid. The decision reinforces the principle that democratic freedoms, particularly the freedom to engage in political protest, cannot be restricted without strong justification. It highlights the judiciary’s role in ensuring that laws which affect political communication are proportionate and do not unnecessarily undermine democratic participation, while still recognising the importance of protecting public safety and the rights of others.