Kvelde v State of New South Wales

COURT OR TRIBUNAL

Supreme Court of New South Wales

DATE FILED (OR FIRST HEARING DATE)

13/10/2022

LITIGATION TYPE

Access to Justice

SUBJECT MATTER

Protest Activities

REVIEW TYPE

N/A

SUMMARY

Extract from website

“Knitting Nannas Dominique Jacobs and Helen Kvelde, through their lawyers at the Environmental Defenders Office, launched a constitutional challenge to s214A of the Crimes Act 1900 in October 2022. Ms Jacobs and Kvelde contend the Crimes Act amendment was unconstitutional because it “impermissibly burdened the implied freedom of political communication”, and that to uphold the Australian Constitution, the NSW Government must allow communities to peacefully protest government policy in public spaces. The Crimes Act amendment introduced a number of offences relating to major facilities including making it an offence to remain “near” any part of a “major facility” if doing so “causes persons attempting to use the major facility to be redirected”. Major facilities include train stations, such as Central, Town Hall and Martin Place, places that historically have been synonymous with peaceful protest. The reforms also increased maximum penalties for peaceful protest to two years’ prison and $22,000. Ms Jacobs and Ms Kvelde have been at the frontline of Australian climate impacts, experiencing trauma and loss from drought, fire and flood in the last four years alone”.

CONSTITUTIONAL LAW — Standing – whether plaintiffs have standing to challenge the validity of s 214A of the Crimes Act 1900 (NSW) – the plaintiffs’ have standing.

CONSTITUTIONAL LAW — implied freedom of political communication – construction of impugned provisions – the nature of the burden - whether the implied freedom is burdened – whether there is an incremental effect by the impugned law on the implied freedom – whether burden inconsequential – burden found -– structured proportionality analysis –impugned provisions are legitimate in their purpose – suitable for purpose – lack of necessity – inadequacy in its balance - subsection 214A(1)(c) is invalid in part – standard use words as to proportionality not reasonable – subsection 214A(1)(d) is invalid.

CRIMINAL LAW – protesters – validity of legislation – freedom of political communication – Crimes Act 1900 (NSW) - Crimes Amendment (Major Facilities) Regulation 2022 (NSW) – subsection 214A(1)(c) invalid in part – subsection 214A(1)(d) is invalid.

ADMINISTRATIVE LAW — Validity of regulation – Roads Act 1993 (NSW) - Roads and Crimes Legislation Amendment Act 2022 (NSW) - regulation is valid.

CASE DOCUMENTS

Environmental Defenders Office website
Kvelde v State of New South Wales [2023] NSWSC 1560