In a landmark constitutional decision, the NSW Court of Appeal has declared key provisions of the Terrorism and Other Legislation Amendment Act 2025 (NSW) invalid, holding that they imposed an impermissible burden on Australia’s implied freedom of political communication. The unanimous decision in Jarrett v State of New South Wales represents one of the most significant judicial examinations of protest rights in New South Wales in recent years and reinforces the constitutional limits on Parliament’s ability to curtail peaceful political protest.
Following the Bondi Beach terrorist attack in December 2025, the NSW Parliament enacted the Terrorism and Other Legislation Amendment Act 2025 (NSW) after the passage of the Terrorism and Other Legislation Amendment Bill 2025 through both Houses of Parliament. The legislation amended several Acts, including the Crimes Act 1900 (NSW), Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Summary Offences Act 1988 (NSW) and the Terrorism (Police Powers) Act 2002 (NSW), significantly expanding police powers to regulate protests and public assemblies.
Readers can view the legislation as passed by Parliament here:
Terrorism and Other Legislation Amendment Bill 2025 (Passed by both Houses)
Among the most controversial reforms was the creation of the Public Assembly Restriction Declaration (PARD) scheme. The legislation empowered the NSW Police Commissioner to designate areas where the ordinary protest authorisation regime could effectively be suspended. It also broadened police move-on powers, authorised the compulsory removal of face coverings in certain circumstances and expanded police powers to regulate demonstrations based on concepts of “social cohesion” and “public order”.
In Jarrett v State of New South Wales, the Court of Appeal unanimously concluded that these provisions were constitutionally invalid because they burdened the implied freedom of political communication beyond what the Constitution permits. Importantly, the Court held that while governments may regulate the time, place and manner of protests for legitimate public safety reasons, legislation cannot unnecessarily discourage or prevent peaceful political communication merely by reference to broad concepts such as “social cohesion”.
The Court observed that Australia’s system of representative and responsible government necessarily tolerates disagreement, disruption and dissent. At paragraph [146], the Court stated:
“The system of representative and responsible government entrenched by the Constitution… entails acceptance of the potential for disharmony, incivility and disruption that is part and parcel of democratic intercourse. That is reflected in the longstanding recognition that the protection of dissent is at the heart of the implied freedom.”
That observation has become one of the defining passages of the judgment and reinforces that political disagreement – even when unpopular or disruptive – forms part of Australia’s constitutional framework.
The decision also sits within a broader pattern of constitutional challenges to NSW protest legislation. In recent years, courts have invalidated provisions targeting climate protests and amendments expanding police powers around places of worship, demonstrating an increasing willingness to scrutinise legislation that disproportionately interferes with political communication. The Court’s reasoning in Jarrett builds upon those authorities by confirming that emergency legislation enacted in response to terrorism remains subject to the same constitutional limitations as any other Act of Parliament.
For criminal lawyers, protesters and members of the public alike, Jarrett v State of New South Wales [2026] NSWCA 62 is likely to become one of the leading Australian authorities on the implied freedom of political communication and the constitutional limits of executive and legislative power over public protest.
Although governments retain broad powers to maintain public safety, the judgment makes clear that those powers cannot extend to suppressing lawful political communication without compelling constitutional justification.
Nick Hardy, 30/06/2026
