NSW Australia: Speech vs Sacred Space
In Australia: A Court Protecting the Shout, Forgetting the Prayer
The New South Wales Supreme Court has struck down the state’s special ‘move-on’ powers for protests ‘in or near’ places of worship, declaring them an unjustified burden on the implied freedom of political communication. The case was brought by the Palestine Action Group and decided by Justice Anna Mitchelmore. The Premier says he will review the ruling. Civil liberties groups are delighted. Jewish leaders are not. This is the choice the court has made: maximal speech at the exact point of maximal vulnerability.
The law was born of hard experience. Sydney’s Great Synagogue was targeted repeatedly, including an event forced into lockdown. The government promised a modest buffer so police could keep entrances clear during defined service times. The court has now treated the synagogue threshold as another patch of pavement. In a liberal society, it is not. It is a known target and has been for generations. From Pittsburgh to Halle, attackers have read the timetable of Jewish life and acted accordingly. Houses of worship are not theoretical forums. They are magnets for those who want blood.
Defenders of the judgment say other offences still exist. Harassment remains illegal. Obstruction remains illegal. Threats remain illegal. What they omit is the basic physics of crowds. Once a demonstration is sitting on a doorway, the police are already behind the play. You do not protect an elderly congregant with a later prosecution. You protect her by keeping the gauntlet away from the door in the first place. The struck provisions were a preventive spanner, limited by place and time. The court has replaced the spanner with a seminar.
The timing could hardly be worse. Australia has endured a documented surge in anti-Jewish incidents since October 2023. The Executive Council of Australian Jewry counts more than two thousand incidents in a single year, up from hundreds the year before. This is not imaginary. It is logged, photographed and reported. Remove a tailored protection at synagogue doors in this climate and you do not achieve noble neutrality. You signal open season. You tell every organiser that the synagogue is a permissible stage set. You hint that the shop with a mezuzah on the frame might be next.
Sydney has already seen what happens when activists decide that a shul is the best available proxy for a distant conflict. Banners are draped across the façade. Chants are led at the entrance. Families are told to hide visible signs of being Jewish to leave safely. Police work overtime to thread two inflamed groups through a single doorway. Call that political speech if you like. A parent guiding a child past a megaphone hears something else. The message is not ‘argue with Israeli policy’. The message is ‘argue with the Jew’.
The court did not endorse indecency. It failed to restrain it. That matters because synagogues are uniquely attractive targets for those who wish to terrorise. The Pittsburgh murderer chose Shabbat for a reason. The Halle gunman chose Yom Kippur for a reason. Even this month, congregants in England were run down and stabbed outside a synagogue. These are not stray facts. They are the background conditions in which any serious jurisdiction writes law. A buffer around the hour of prayer is not a gag on politics. It is a commonsense acknowledgement that the door to a sanctuary is not a speaker’s corner.
There is a second danger the judgment invites. If the synagogue doorway is fair game, why not the grocer with a menorah in the window, the bookshop that stocks Hebrew titles, the café owned by a Jewish family, the small manufacturer whose partners happen to have Israeli cousins. The logic is tidy. The practice would be squalid. A campaign that normalises protests at houses of worship will bleed into intimidatory pickets at Jewish-owned businesses, the soft targets that keep a neighbourhood alive. What begins as ‘near a place of worship’ spirals into ‘near a place of work’. The harm will be cumulative, and it will not be redeemed by a court’s elegant paragraph on implied freedoms.
Critics say the government invited this outcome by drafting sloppily and overselling the threat. There is truth in that. ‘In or near’ is the sort of rubbery phrase that courts love to puncture. Ministers should not anchor urgent powers to shaky intelligence or tabloid panic. Yet the appropriate remedy for bad drafting is better drafting. The purpose remains sound. Give police a short, clear list: a defined radius from entries and exits, published service windows, mandatory notice, a duty on organisers to keep paths clear, and capped amplification when children and the elderly arrive. Craft narrowly. Justify honestly. Survive review.
The usual refrain now is that any renewed protection would be a slippery slope. Nonsense. Democracies already draw ‘time, place and manner’ lines around sensitive sites. Courts keep protest at arm’s length from their doors. Hospitals and schools do the same. Parliament House does too. None of this has abolished dissent. It has civilised it. Apply the same civility to the hour of prayer and you strengthen democratic argument by refusing to turn minorities into props.
Context matters. The Gaza war is not over. Tempers are high. Social media amplifies each new outrage, real or invented, and exports it onto Australian streets. In such a season a respectable legal theory can have disreputable effects. Strike down a modest buffer today and you will have larger, louder, closer demonstrations tomorrow. A principle that pretends to be even handed will in practice land on the same small doorway every week. That is not balance. It is abdication.
What should follow is straightforward. If there is a viable ground, the government should appeal. Simultaneously, it should return to Parliament with a tighter bill shaped by the court’s reasoning. The objective is not to muzzle opponents of Israel or anyone else. It is to guarantee that a child can walk into a synagogue without running a corridor of jeers. That is the test. Pass it and you have a community at ease with itself. Fail it and you have a country where the faithful time their exit to avoid the slogans.
A final word on tone. Protesters who insist they are speaking only about foreign policy have a simple remedy. Go to a consulate. Go to Parliament. Go to a public square. Choose the synagogue and you are making a different statement. You are telling a minority that its holiest threshold is your most convenient stage. The Supreme Court has done what it thinks doctrine requires. Legislators must now do what decency requires. Write a precise shield for the hour of prayer and keep argument where it belongs. No citizen should have to measure courage against a megaphone.
