Lawyers for the protesters argued in court this year that the laws,introduced last year by the former NSW Coalition government with the support of the then Labor opposition,fell foul of the implied freedom of political communication in the Commonwealth Constitution.
The laws were introduced after a series of climate protests at Port Botany that caused disruptions to traffic. Jacobs and Kvelde participated in that action.
In a decision on Wednesday,Justice Michael Walton said that the changes to the state’s Crimes Act,which criminalised a raft of protest activity around major facilities – including ports,train stations,ferry terminals,airports,power stations,steelworks and oil terminals – were partially invalid.
He upheld the validity of provisions making it an offence to “enter,remain on or near,climb,jump from or otherwise trespass on or block entry to any part of a major facility” if it damaged the facility,seriously disrupted or obstructed people trying to use it,or led to it being closed completely.
However,he said that the government could not criminalise activities which led to the major facility being only partially closed,or which caused people attempting to use it to be redirected.
Those provisions infringed the implied freedom of political communication,Walton said,and had “a chilling effect on political communication via protests and public assemblies”.
Walton said that “it must ... be stated at the outset that it is not part of this court’s function to pass judgment on the political wisdom of the impugned provisions”.