NSW Bill to prevent peaceful protests near places of worship undermines our democracy

February 17, 2025

The Crimes Amendment (Places of Worship) Bill 2025  was introduced by the NSW Government on 11 February 2025 

ALHR has written to the NSW Premier, Attorney-General and other members of the NSW Parliament expressing our  concerns that these measures are incompatible with human rights, cast a disproportionately wide, ill defined and punitive net, and may include provisions that are unconstitutional.

The proposed amendments will not operate in isolation but are part of a criminalisation and police powers creep in NSW that leaves increasingly less space for public assembly and protest.

The proposed laws

 Section 214B of the Bill makes it an offence to:

  • without reasonable excuse, intentionally block, impede or hinder a person accessing or leaving a place of worship, or
  • harass, intimidate or threaten a person accessing or leaving a place of worship. 

The offence carries a maximum penalty of 200 penalty units or imprisonment for 2 years, or both.

The Bill also proposes to amend the Law Enforcement (Powers and Responsibilities) Act 2002 No 103 Schedule 2[2] in order to authorise police officers to issue move on directions in relation to a demonstration, protest, procession or assembly occurring in or near a place of worship unless the demonstration, protest, procession or assembly

  • is an authorised public assembly under the Summary Offences Act 1988, Part 4, or
  • is part of industrial action or an industrial dispute or campaign, or
  • occurs outside Parliament House or an office of a member of Parliament, or
  • is in accordance with the consent of the Commissioner of Police or the person apparently in charge of the place of worship.

ALHR is extremely concerned that the Bill:

  • has not been referred to a Parliamentary Inquiry for scrutiny and public consultation;
  • may have significant unintended consequences;
  • is inconsistent with:
    • Australia’s binding international legal obligations under the core United Nations Human Rights Treaties; and
    • the implied freedom of communication that exists under the Australian Constitution in relation to political and government matters;
  • undermines democracy in NSW.

ALHR has urged the NSW Government and all members of parliament to ensure that Bill is referred to a Parliamentary Committee for inquiry in order to enable meaningful scrutiny and public consultation.

Laws that have a significant human rights impact should, categorically, not be rushed through the NSW Parliament without proper scrutiny or consultation with the community.

Pursuant to article 18(1) of the International Covenant on Civil and Political Rights (ICCPR), everyone in NSW has an internationally recognised human right to observe their religion alone or in community with others free from discrimination, harassment or violence. 

Acts of violence against any place of worship or which target specific communities are abhorrent and should be treated with the utmost seriousness. 

However, ALHR is deeply concerned that the Bill, if passed, will disproportionately limit the people of NSW’ internationally recognised article 21 and article 22 ICCPR human rights to freedom of assembly and association in NSW. 

ALHR is concerned by ongoing  attempts to link peaceful protests with racist criminal acts. There is no credible correlation between recent antisemetic crimes and the exercise of the right to freedom of assembly. Restricting the right to peaceful protest would not have prevented abhorrent antisemitic and Islamophobic crimes and hate speech seen in recent months. 

We are also concerned that the Bill represents an unnecessary duplication of laws that  already exist to protect people in NSW from intimidation and harassment.

ALHR agrees with the twelve NSW faith communities who have co-signed a letter to the NSW Government noting that:

..instances of violence, harassment or intimidation in the vicinity of religious institutions are already covered by existing legislation, including prohibitions on intimidating individuals in the Crimes Act and inciting hatred against individuals based on their religion in the Anti-Discrimination Act. 

International human rights law

The right to freedom of assembly protects the right of individuals and groups to meet and to engage in peaceful protest. As a party to the core United Nations human rights treaties, Australia has recognised this as a fundamental human right and accepted binding international legal obligations to protect it. These obligations  are articulated in:

  • articles 21 and 22 of the ICCPR; and 
  • article 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and 
  • article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), article 15 of the Convention on the Rights of the Child (CRC) and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD) which establish that the right to freedom of assembly belongs to all individuals and groups in NSW regardless of age, ability, race or any other characteristic.

Further, in July 2020 the United Nations Human Rights Committee (UNHRC) released General Comment No. 37 on Article 21 (Right of peaceful assembly), providing comprehensive guidance on the scope and content of the right to peaceful assembly and the obligations of ICCPR State parties, including Australia. 

General Comment 37 specifically notes that:

  • the fundamental right of peaceful assembly extends to all gatherings for peaceful purposes. Article 21 of the ICCPR protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof. Such assemblies may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelit vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches;
  • an assembly cannot be deemed violent or non-peaceful just because it involves disruption of movement or civil disobedience;
  • States have an obligation not to interfere with peaceful assemblies without compelling justification, they are obligated to facilitate them;
  • authorities should first apply least-intrusive limitations on assemblies, prohibition should be a last resort ;
  • restrictions on assemblies must not be based on the message of the assembly or  the degree of public support for the purpose of the gathering;
  • assemblies must be allowed to be held within sight and sound of their target;
  • “Public order” cannot be used to justify overbroad restrictions;
  • assemblies may only be dispersed by law enforcement agencies in exceptional cases;
  • notification regimes that require people to apply for permission or authorisation to organise an assembly are contrary to the idea that peaceful assembly is a basic right.

Specific Problems with the Bill

International law is clear – the right to peaceful assembly can only be legally limited in ways that are necessary and proportionate.

The introduction of the Bill without any adequate scrutiny or public consultation renders it impossible for the Government, or any member of the NSW Parliament, to properly establish that the Bill meets these necessity and proportionality thresholds.

With ‘places of worship’ located at or near major protest sites in the centre of Sydney, Parramatta and Newcastle and in the centres of almost all regional NSW towns, the proposed measures cast a disproportionately overbroad and punitive net.

For example, many peaceful protest rallies in the Sydney CBS regularly run past, or in the general vicinity of, religious buildings such as St Mary’s Cathedral or the great Synagogue without incident. However, these protests may attract criminalisation under the proposed new laws. There are times when peaceful protests are legitimately against religious institutions themselves, such as in the case of institutional sexual abuse or practises such as conversion therapy. Such protests often include worshippers or members of the congregation themselves.

Language of the Bill

The term ‘places of worship’ is not adequately defined and may capture protest activity at or near locations such as schools and hospitals containing places of worship on their premises.

Criminalising ill-defined activity such as “hindering” or “impeding” access to a place of worship risks introducing imprecision and subjectivity into the criminal law. Similarly what would constitute “harassing” a person entering or leaving a place of worship is ill-defined and subjective.

These proposed new criminal offences carry serious penalties, including the possible deprivation of a person’s liberty. Pursuant to the rule of law, criminal offences should be clear and able to be consistently understood across the community. 

If passed, the Bill very clearly has the potential to limit a wide range of peaceful protest activity. Survivors of institutional sexual abuse, students, First Nations people and their allies, environmental campaigners, disabled campaigners, human rights campaigners, anti-war protestors, LGBTIQA+ protestors, or any NSW resident who seeks to exercise their human rights to freedom of assembly to campaign for their rights, justice or a fairer world at or near a place of worship face the prospect of being subject to a move on direction or life-changing prison sentences and/or crippling fines.

Exemptions for some locations and some types of protest activity 

The narrow carve outs for protest activity outside Parliament House or an office of a member of Parliament or that is part of industrial action or an industrial dispute are not sufficient to render these measures reasonable or proportionate as required by international law. Similarly, as explained below they may not be sufficient to render the move on powers within the Bill constitutional.

Protecting the right to gather for industrial action is consistent with article 8(1)(a) of the ICESCR and should rightly be protected. However, there is no hierarchy of human rights. The principle of indivisibility, interdependence and interrelation is at the core of international human rights law. The NSW Government should not cherry pick protection for freedom of assembly and association for some and not others. The ICESCR, CERD, CRC and CRPD make clear that freedom of assembly must be protected for all people and groups in NSW.

Australia’s article 21 ICCPR obligations

In ALHR’s view this Bill contains measures that are neither a necessary nor a proportionate response to combating racism and hate speech in our community. In particular the Bill would introduce  overbroad restrictions that are inconsistent with Australia’s article 21 ICCPR obligations because they:

  • violate the principle that article 21 protects peaceful assemblies wherever they take place and interfere with peaceful assemblies without compelling justification;
  • violate the principle that assemblies must be allowed to be held within sight and sound of their target;
  • are inconsistent with the NSW Government’s obligation to facilitate peaceful assemblies;
  • violate the principle that NSW authorities should first apply least-intrusive limitations on assemblies;
  • violate the principle that assemblies may only be dispersed by law enforcement agencies in exceptional cases;
  • perpetuate the adverse human rights impact of notification regimes introduced in NSW within Part 4 of the Summary Offences Act 1988 (NSW) that seek to require people to apply for permission or authorisation to organise an assembly. In this regard, the UNHRC has specifically and clearly stated that:
    • such regimes are contrary to the idea that peaceful assembly is a basic right; and
    • any failure to notify the authorities of an upcoming assembly, where required does not render the act of participation in the assembly unlawful, and must not in itself be used as a basis for dispersing the assembly or arresting the participants or organizers, or for imposing undue sanctions, such as charging the participants or organizers with criminal offences; and
    • notification regimes must not in practice function as authorisation systems.

Without the right to assemble en masse, disturb and disrupt, to speak up against injustice we would not have the eight-hour working day, and women would not be able to vote. If protests at or near placed of worship had been prevented, the victims of institutional child sexual abuse may have gone unheard. 

Protests encourage the development of an engaged and informed citizenry and strengthen representative democracy by enabling direct participation in public affairs. 

When we violate the right to peaceful protest we undermine our democracy and the rules-based international legal 

Implied freedom of political communication

The High Court of Australia has acknowledged in various decisions that an implied freedom of communication exists under the Constitution in relation to political and government matters. The High Court has confirmed that this implied freedom extends to state and local political and government matters.

Any law that effectively burdens this implied freedom of communication  must be reasonably appropriate and adapted to advance a legitimate object and must be a proportionate response to the purpose sought to be achieved. In considering whether a law satisfies this threshold the High Court has considered whether the measures are suitable, necessary and adequate in their balance. 

ALHR is concerned that section 200(5)(ii) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) will not satisfy this threshold. The measures will provide the NSW Police with the power to move on individuals protesting at or near a place of worship and to impose fines or charge them with an offence if they do not comply. Such measures will capture freedom of communication in relation to political and government matters as they will capture common peaceful protest activity, such as gatherings in Sydney near Sydney Town Hall or the Supreme Court. Notably, they will also capture protest activity in a significant number of regional town centres, due to these towns’ small geographical size causing proximity to a place or places of worship. Further, they will capture protest activity that centres on the relationship between the state and religious institutions.

We are concerned that, despite the aim of the legislation being to “ensure people of faith can attend their place of worship in safety,” the measures may cast such a wide net over protest activity that they may not be considered reasonably appropriate, proportionate, adequate in their balance, nor adapted to advance a legitimate purpose that is compatible with the maintenance of the system of representative government. 

ALHR is concerned that this aspect of the Bill may be unconstitutional. 

Conclusion

By aligning domestic laws with international human rights obligations, NSW can better protect everyone in NSW equally, uphold our democratic way of life and foster a safer and more inclusive society.

Now is a time for NSW to show that human rights and rule of law are critical to a flourishing democracy.

We urge you to ensure that this Bill is referred to a Parliamentary Committee for inquiry so that the issues raised in this letter can be properly scrutinised through meaningful expert and community consultation. 

The people of NSW should have a say on laws that will significantly impact the exercise of their core democratic freedoms.

Laws that have a human rights impact should, categorically, not be rushed through the NSW Parliament without proper scrutiny or consultation with the community. 

We take this opportunity to again reiterate our joint civil society call for the introduction of a Human Rights Act for NSW.  It is time for NSW to protect everyone’s human rights equally and ensure that all legislation that comes before our parliament only limits protected rights in ways that are necessary and proportionate in a free and democratic society based on human dignity and equality.