A legal challenge launched against New South Wales laws restricting protests after terrorist incidents, introduced following the Bondi beach attack, will not be resolved before several marches planned for later this month, setting up potential clashes between police and protesters.
Groups the Blak Caucus, the Palestine Action Group (PAG) and Jews Against the Occupation ’48 filed the challenge in the NSW supreme court on Wednesday, arguing in the court summons that the laws were invalid because they “impermissibly burden the implied constitutional freedom of communication on government and political matters”.
At a directions hearing on Thursday, justice Julia Lonergan ordered that the challenge be adjourned until 29 January, when the NSW chief justice, Andrew Bell, would determine if the matter should be heard by the state’s court of appeal.
Speaking outside court, the PAG organiser Josh Lees accused the premier, Chris Minns, of using “community fear after the horrific Bondi attack to erode our democratic rights”. Lees said the group would continue to protest while the court considered the challenge, including if a controversial visit by the Israeli president, Isaac Herzog, went ahead.
“We will defy these laws if we need to. We will protest and continue to march on the streets of Sydney,” he said.
The co-applicants had previously announced their intention to challenge the laws, which prevent protests being authorised by police after a public assembly restriction declaration (Pard). The laws were rushed through parliament last month after the Bondi massacre.
Wednesday’s challenge comes after the NSW police commissioner, Mal Lanyon, announced on Tuesday that a 14-day declaration made under the powers on Christmas Eve for Sydney’s CBD, south-west and north-west policing areas would be extended until 20 January. He cited ongoing community safety concerns, but said no further intelligence had come to light to motivate the move.
The groups have expressed concern that the declaration, which can be extended for a total of 90 days, could affect expected Invasion Day rallies on 26 January. Asked about the possibility on Tuesday, Lanyon said it was “very premature to consider that”.
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On Thursday, the groups’ barrister, Hilbert Chiu SC, asked the court to consider that there was “some urgency for a determination” for the plaintiffs because “a number of fairly significant protests are planned for the balance of January”.
They included a pro-Palestine rally on 16 January, a march on 18 January over Indigenous deaths in custody, and expected Invasion Day rallies on 26 January.
Lonergan said she had raised the dates when she discussed the case with the chief justice, but said the timeline would allow the court to review the complex constitutional question, including whether it should be heard before a single supreme court judge or multiple judges at the court of appeal.
Dunghutti man and organiser of the 18 January rally, Paul Silva, told Guardian Australia that the organisers intended to proceed with a march through the Sydney CBD starting in Hyde Park.
The protest falls on the 10th anniversary of the funeral of his uncle, David Dungay Jr, who died in custody at Long Bay jail on 29 December 2015.
Silva said he was informed on Tuesday by NSW police that only a static assembly would be permitted, and if people marched they would be breaching the laws and face police action.
He said he expected at least 10,000 people to attend the rally to “scrutinise the government and scrutinise corrective services, police and authorities within society” in relation to how they “are brutalising Aboriginal people” in custody.
Silva said it was “concerning” that police could restrict Aboriginal resistance – ongoing since colonisation – if the protest declaration was extended to cover Invasion Day marches.
“NSW police already use a number of move-on powers in a racist way towards Aboriginal people,” he said. NSW police declined to comment.
Minns has previously described civil liberties concerns as “overblown” and said the government was “confident that the laws will withstand a constitutional challenge”. Minns was contacted for comment.
Constitutional law experts have expressed uncertainty about the success of a challenge against the powers, which do not prohibit public assemblies outright but prevent their authorisation under NSW’s form 1 system. Authorised protests provide protection from prosecution for offences such as obstructing pedestrians and traffic.
The premier and police commissioner have insisted the laws do not restrict “peaceful” and static assemblies and were needed to preserve social cohesion following the Bondi attack. But the groups have argued the changes, which also give police move-on powers at unauthorised protests, effectively ban all rallies.
The president of the NSW Council for Civil Liberties, Timothy Roberts, told Guardian Australia the laws were creating an “extraordinary chilling effect, sitting in the shadow of police discretion about what protests are and aren’t appropriate”.
A NSW police spokesperson on Thursday said the force was “acting within their powers” and referred questions about the constitutional challenge to the premier’s office.
This is the latest challenge against protest laws introduced by the Minns government. In October, the NSW supreme court ruled a law that gave police the power to move on protesters “in or near” a place of worship was unconstitutional, after a challenge launched by PAG.
The group successfully appealed against a police decision not to authorise a march on the Sydney Harbour Bridge in August, although it lost an appeal against a prohibition on a march to the Opera House forecourt in October, with the court citing “extreme” safety concerns.
