NSW Protest Guide: How To Hold A Lawful Protest In NSW

The legal framework for holding an authorised public assembly is outlined in Part 4 of the Summary Offences Act 1988 (NSW) (the Act). Below is a guide on the law on protesting in NSW written by our criminal lawyers Sydney team.

NSW Protest Laws: How to Lawfully Hold a Public Protest

A protest according to the law in New South Wales referred to as a public assembly". A public assembly is either an authorised one or an unauthorised one. It will be an authorised public assembly" if the following section 23(1) of the Act requirements are satisfied:

1. A notice of intention to hold the assembly in the prescribed form and containing the prescribed particulars, has been served on the Commissioner of Police; and
2. If the required notice has been served on the Commissioner of Police at least 7 days before the dare of the assembly, either:
3. The Commissioner of Police has notified the organiser of the assembly that they do not oppose the holding of the assembly; or
4. The assembly has not been prohibited by a court.

The above requirements means that if the notice has been served on the Commissioner of Police at least 7 days before the date of an assembly, the assembly will be an authorised assembly" unless and until a court order is obtained prohibiting it. The assembly will no longer be an authorised public assembly" if the court provides for an order prohibiting it under section 25(1) of the Act. This effectively deprives participants of the protection that section 24 of the Act would otherwise provide.

Authorised vs Unauthorised Public Assembly

Therefore, under section 24 of the Act, if an authorised public assembly is held substantially in accordance with the particulars furnished in respect of it as required by the Summary Offences Regulation 2020 (NSW), a person who participates in it will not by reason of that participation, be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

The purpose of Part 4 of the Act is not to prohibit public assemblies but, certainly in cases where they are a due exercise of the democratic right of free speech, to facilitate them by protecting participants in appropriate circumstances from prosecution for certain offences which might otherwise be regarded as having been committed. This statement was made by Hamilton J in Commissioner of Police (NSW) v Gabriel [2004] NSWSC 31; 141 A Crim R 566 at [1].

The Act is intended to strike a balance between competing rights- the right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to a democratic system, of government and way of life, and the right of other citizens not to have their own activities impeded or obstructed or curtailed by the exercise of those rights" (Simpson J in Commissioner of Police v Rintoul [2003] NSWSC 662 at [5].

The fact that a protest would cause significant dispute on or inconvenience to person not participating in the protest is not sufficient to justify the making of an order under section 25(1) to prohibit it by the court." (Simpson J in Commissioner of Police v Rintoul [2003] NSWSC 662 at [20].

When Can Police Give You a Direction to Move On?

A police officer is permitted under section 197(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPRA') to give a direction to a person who is in a public place if the police officer believes on reasonable grounds that the person's behaviour or presence in the place amounts to one or more of the following 'relevant conduct':

1. Is obstructing another person(s) or traffic; or
2. Constitutes harassment or intimidation of another person(s); or
3. Is causing or likely to cause fear to another person(s), so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness; or
4. Is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.

The direction given must be reasonable in the circumstances for the purpose of one or more of the following:

1. To reduce or eliminate the obstruction, harassment, intimidation or fear; or
2. To stop the supply or soliciting to supply a prohibited drug; or
3. To stop the obtaining, procuring or purchasing of the prohibited drug.

The direction is enlivened thereby permitting the police to give such a direction to a person or persons even if that person or persons are not in the public place but is at least near that place at the time.

The power to give directions includes the power given to police officers to give any such directions to a group of people.

What is the Penalty for Failing to Comply with a Police Direction?

A failure or refusal to comply with a lawful police direction without reasonable excuse attracts a penalty of a $220 fine according to section 199 of LEPRA. However, a person accused of this offence is not guilty unless it is established that he or she persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct.

Police officers are required to comply with Part 15 LEPRA safeguards when exercising such powers to direct members of the public to move on.

The Contested Law

Section 200(1) and (2) of LEPRA as at the date of this article states that a police officer cannot give a direction in the following circumstances:

1. Where there is an industrial dispute;
2. Where there is an apparently genuine demonstration or protest; or procession; or an organised assembly, unless any of the following apply:
   • A demonstration, protest, procession or assembly if the police officer believes on reasonable grounds that the direction is necessary to deal with a serious risk to the safety of the person to whom the direction is given or to any other person (section 200(3) LEPRA), or
   • Any such demonstration, protest, procession or assembly that is obstructing traffic if it is not an authorised public assembly for purposes of Part 4 of the Summary Offences Act 1988 or the demonstration, protest, procession or assembly is not being held substantially in accordance with any such authorisation; and the police officer in charge at the scene has authorised the giving of a direction in relation to the demonstration, protest, procession or assembly; and the direction is limited to the persons who are obstructing traffic (section 200(4) LEPRA); or
   • A demonstration, protest, procession, or assembly that is not an authorised public assembly for purposes of the Summary Offences Act 1988, Part 4, or is not being held substantially in accordance with an authorisation under that part, and is occurring in or near a place of worship, within the meaning of section 214B Crimes Act 1900, and the demonstration, protest, procession or assembly does not form part of an industrial action or an industrial dispute or campaign, and is not occurring at or outside Parliament House or an office of a member of Parliament, and is not in accordance with the consent or other authority of the Commissioner of Police or the person apparently in charge of the place of worship (section 200(5) LEPRA).

Section 200(5) LEPRA was enacted pursuant to the Crimes Amendment (Places of Worship) Act 2025 (NSW). In Joshua Lees Case of Lees v State of New South Wales [2025] NSWSC 1209, Lee challenged the validity of section 200(5) LEPRA arguing that it is invalid because it impermissibly burdens the implied freedom of communication on government or political matters.

Joshua Lees Case and Palestinian Action Group: Right to Protest in NSW

Joshua Lee (the defendant) was the organiser on behalf of the Palestine Action Group (PAG) of a public assembly in order to draw attention to, and advocate in respect of, the worsening humanitarian crisis in Gaza.

On 26 July 2025, Lee served a notice of intention to hold a public assembly under section 23 of the Summary Offences Act 1988 (NSW) (the Act) on the Commissioner of Police (the Plaintiff). The notification outlined that the date of the public assembly to commence at 1pm on Sunday 3 August 2025, including a procession from the Sydney CBD to North Sydney via the Sydney Harbour Bridge.

An estimated 10,000 people were expected to participate.

The Police sought an order under section 25 of the Act seeking to prohibit Lee from holding the public assembly.

The Supreme Court heard evidence that the purposes of the PAG protests are to show the Palestinian people that PAG stands against genocide, and to contribute to a global movement that will make it harder for Israel to kill and oppress Palestinians with impunity. PAG wishes to call on the Australian Government to stop backing and arming Israel. PAG purposes include to end Israel's blockade of aid and the mass starvation of the Palestinian population, a permanent ceasefire, an end to the illegal Israeli occupation of Gaza, the West Bank, Lebanon and Syria, and for the Australian Government to sanction Israel.

While the court refused the police's application to prohibit the protest under section 25 of the Act and dismissed the summons, more importantly, the court declared that the amendments to the LEPRA that was introduced by the Minns Government was invalid because it impermissibly burdened the constitutionally implied freedom of political communication. Section 200(5) of LEPRA outlined above which gives police the powers to give a move on direction to anyone protesting near a place of worship regardless of whether there was a disturbance or threat to safety has been declared by the Supreme Court to be an impermissible burden on the implied constitutional freedom of political communication and is therefore invalid.

The court held that the implied freedom, which operates as a limitation on legislative power, has been described as essential to the maintenance of the system of representative and responsible government for which the Constitution provides" by sections 7, 24, 64 and 128. That system requires that electors be able to exercise a free and informed choice when choosing their representatives, and, for them to be able to do so, there must be a free flow of communication within the federation.

The main takeaway from this case is that NSW Police are not allowed to use the power under section 200(5) LEPRA to give move on directions on anyone protesting near a place of worship, regardless of whether there is a disturbance or threat to safety.

This also means that if a police officer has used the power under section 200(5) LEPRA and the person to whom it was given does not comply before police arrest that person, the arrest will be unlawful.

Is it Illegal to Participate in an Unlawful Assembly or Protest?

It is not illegal to participate in an unauthorised public protest in New South Wales. However, a maximum penalty of 6 months imprisonment and/or $550 fine is prescribed for knowingly joining an unlawful assembly or continuing in it if the assembly consists of 5 or more people whose common objective is by means of intimidation or injury to compel a person to do what the person is not lawfully bound to do or to abstain from doing what the person is lawfully entitled to do pursuant to section 545C of the Crimes Act 1900 (NSW).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.