When is it illegal to attend a protest? Contempt of court and unlawful assembly following Commissioner of Police v Naser
Henry Chen
Cherry Tang
25.2.2026
In this post, we challenge the comments made by the NSW Court of Appeal about the potential criminal consequences of an order ‘prohibiting’ a protest under s 25 of the Summary Offences Act 1988 (NSW) (Summary Offences Act) in Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224 (Naser).
On 1 October 2025, Palestine Action Group notified NSW Police of their intention to hold a protest for 40,000 people at the Sydney Opera House on 12 October 2025, after ‘two years of genocide’ in Gaza (Opera House protest). In response, NSW Police applied to the Court of Appeal for a prohibition order, which the Court ultimately granted.
The proposed Opera House protest followed an earlier protest organised by Palestine Action Group on 3 August 2025 on the Sydney Harbour Bridge (Harbour Bridge protest), at which protesters enjoyed legal immunity from offences relating to unlawful assembly or obstruction after Rigg J refused to make a prohibition order sought by NSW Police: Commissioner of Police v Lees [2025] NSWSC 858 (Lees). While the expected turnout at the Harbour Bridge protest was estimated at 10,000 and later revised to 50,000, the protest was ultimately attended by up to 90,000 people (according to NSW Police) or 300,000 people (according to Palestine Action Group).
The Harbour Bridge protest was halted mid-way and turned around for reasons of public safety. Following the protest, Assistant Commissioner Peter McKenna reflected that while the police operation was a success in that no one was hurt, ‘gee whiz, I wouldn't like to try and do this every Sunday at that short notice.’
McKenna gave evidence to similar effect before the Court of Appeal in Naser. The Court relied heavily on his evidence (at [65] and [75]), together with the physical constraints of the Opera House, in deciding that the risk of crowd crush outweighed the public interest in protest so as to justify a prohibition order.
The Court in Naser made two significant observations about the potential criminal consequences of making that order. First, the Court found that ‘breach of that order may render persons with knowledge of that order in contempt of Court’, which ‘may extend, in certain circumstances, to persons who were not parties to the proceedings in which the order was made’ (contempt consequence). Secondly, the Court said that such an order ‘may also have significance for the operation of s 545C of the Crimes Act 1900 (NSW) which concerns knowingly joining, or continuing in, an “unlawful assembly”’ (unlawful assembly consequence).
In making those observations, the Court of Appeal appears to have been concerned to shut down a submission made on behalf of Palestine Action Group that a prohibition order would not make the Opera House protest any safer because protesters would attend anyway. That submission had previously persuaded Rigg J that the Harbour Bridge protest should not be prohibited because her Honour could not be ‘satisfied on the evidence’ as to ‘whether there are likely to be more or less people in attendance if the protest is prohibited’ (Lees at [70]).
Naser is the first time the NSW Court of Appeal has decided an application for a prohibition order under pt 4 of the Summary Offences Act. Each previous application has been decided by a single judge of the NSW Supreme Court, with each decision being ‘final’ and ‘not subject to appeal’ given the need for the application to be decided ‘with the greatest expedition possible’ (s 27). Naser was uniquely removed to the Court of Appeal by reason of a separate constitutional issue which the Court ultimately chose not to address, being whether bylaws prohibiting protests at the Opera House infringe the implied freedom of political communication (at [24]).
The result is that the reasoning of the Court of Appeal in Naser on contempt and unlawful assembly is likely to be influential, and unlikely to be revisited at the appellate level. Decisions by single Judges have begun to pick up the language of the contempt consequence in Naser (see, eg, Lees v State of New South Wales [2025] NSWSC 1209 at [40]). We say this position is unsatisfactory, because the issues of contempt and unlawful assembly were not fully argued in Naser, and the correctness of the Court’s reasoning is open to doubt.
The remainder of this post advances three contentions. First, the contempt consequence sits uneasily with the Summary Offences Act’s purpose of removing restrictions on freedom of assembly and encouraging cooperation between protest organisers and police. Secondly, even if protest organisers can be prosecuted for contempt, criminal liability is unlikely to extend as a matter of law to protest attendees as third parties. Thirdly, the unlawful assembly consequence is inconsistent with the entire body of case law on s 545C of the Crimes Act, including recent authority of the Court of Appeal.
Part 4 of the Summary Offences Act
Part 4 of the Summary Offences Act provides a process for protesters to seek authorisation from police before holding a protest (s 23) (the form 1 application). If the intended protest is notified at least 7 days before it takes place and is not opposed by police, it becomes an ‘authorised public assembly’.
That authorisation means that protesters will not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, be guilty of any offence relating to participation in any unlawful assembly or obstruction (s 24). It also excludes the application of move on directions under s 200 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
Section 25 is the ‘particularly curious’ provision which muddles the objectives of the permit system (see Commissioner of Police v Gabriel [2004] NSWSC 31 at [1] (Gabriel)) because it uses the word ‘prohibiting’. Section 25 is entitled ‘Prohibition by a Court of a public assembly’. Subsection (1) provides that:
The Commissioner may apply to a Court for an order prohibiting the holding of a public assembly in respect of which a notice referred to in section 23(1) has been served if the notice was served 7 days or more before the date specified in the notice as the date on which it is proposed to hold the public assembly (emphasis added).
The contempt consequence
Contempt by protest organisers
In Naser, the Court of Appeal considered that ‘the text of s 25(1) [is] decisive’ to understanding the consequences of making a prohibition order. The contempt consequence was said to arise because s 25 ‘operates to do precisely what the terms of the order suggest, namely to prohibit the holding of the proposed public assembly’ given the Court’s expectation that ‘its orders, including orders pursuant to s 25 of the Act, will be respected and obeyed’ (at [16]).
The Court of Appeal failed to engage with the legislative context and purpose for which s 25 was drafted, which are at odds with the contempt consequence. While a provision conferring a judicial power should be construed liberally (Naser at [6]), it can only be construed ‘as liberally as its terms and context permit’ (PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313). Where a court’s power to make an order is conferred by statute, contempt of court can be excluded by implication, as a matter of statutory construction, on the basis that the statute provides for an exclusive regime: Attorney-General v Kernahan (1981) 28 SASR 313.
The provisions now located in pt 4 of the Summary Offences Act were first enacted by the Wran Labor government in the Public Assemblies Act 1979 (NSW) (Public Assemblies Act), replacing the Summary Offences Act 1970 (1970 Act) under which processions were unlawful unless authorised by police. When the Bill for the Public Assemblies Act was introduced into Parliament, the Minister’s Second Reading Speech specifically denounced the requirement for permission to protest in the 1970 Act as ‘a fascist and totalitarian measure reminiscent of the worst excesses of Stalin’s Russia’ and went on to state that under the Public Assemblies Act, ‘the freedom to assemble will not be dependent upon the permission of some authority, be it the police or otherwise’ (emphasis added). When the provisions were moved into the Summary Offences Act in 1988, the Minister’s Second Reading Speech stated that the Public Assemblies Act had worked well because it ‘encourages and rewards mutual co-operation between police and participants in public assemblies’.
Given the Parliament’s express intention to remove restrictions on protest by enacting what is now pt 4 of the Summary Offences Act, the better view is that the scheme only operates through the protections conferred on participants in an authorised public assembly under s 24. Concerns about public safety are already addressed once an assembly becomes unauthorised: numbers of participants are likely to be lower, offences for obstructing traffic become available, and police have expanded powers under LEPRA (including arrest) which can be used to manage any residual risk. In that sense, there is no further need to render the holding of an unauthorised assembly a contempt of court. The statutory purpose is fulfilled by the distinction between authorised and unauthorised protests.
Furthermore, the spectre of contempt of court for merely attending an unauthorised protest is a radical departure from the position which has stood in the case law of the NSW Supreme Court for nearly half a century.
Since they were first enacted in 1979, pt 4 of the Summary Offences Act and its predecessors have been applied by the NSW Supreme Court approximately 20 times. In almost every case heard outside the COVID-19 pandemic (on our count, at least 13 cases from 1980 to 2025), the NSW Supreme Court has stated that removing the s 24 immunity is ‘all that an order prohibiting the assembly does’, or that a prohibition order under s 25 ‘does not prohibit the holding of a public assembly at all’ or ‘prohibits nothing’. These statements were informed by the history and purpose of pt 4 – matters which the Court of Appeal in Naser has abandoned in favour of textual primacy.
A reading of pt 4 of the Summary Offences Act as excluding contempt would also be consistent with protest legislation in Queensland, which was modelled on the NSW Summary Offences Act. Under s 12 of the Peaceful Assembly Act 1992(Qld) (Queensland Act), the Commissioner of Police may apply to a court for an order ‘refusing to authorise the holding of the assembly’.
While the Electoral and Administrative Review Commission (EARC) initially recommended that contempt should be available for breach of a prohibition order under the Queensland Act, that recommendation was overturned by the Parliamentary Committee for Electoral and Administrative Review (PCEAR). Contempt as a remedy was described in Parliament as ‘too heavy handed’, and ‘using a sledgehammer to crack a nut’ (QLD Legislative Assembly Hansard, 17 June 1992, pp 5802-5803). In adopting the wording in s 12, the Queensland Parliament proceeded on the understanding that it was adopting ‘the New South Wales model’ in which contempt was not available at all – an understanding which reflects the balance of NSW Supreme Court authority before Naser (PCEAR Report, at 23).
Even if contempt was available for breach of a prohibition order, however, it was understood in the EARC Report that contempt proceedings ‘can only be brought against a person who was a party to the proceedings which resulted in the order’, with the result that (at [7.135]):
This might lead to situations where the Court orders that a march is prohibited, the organisers do not march because they have received notice of the orders, but their followers march anyway. No sanction is likely to be available against those who marched in such circumstances.
Contempt by protest attendees
In Naser, the Court of Appeal observed that a mere third party ‘with knowledge of’ the prohibition order may be guilty of contempt. We say this is incorrect. Even if contempt is available for a breach of a prohibition order, liability for contempt can only be limited to the defendant organisers against which the order is made and cannot extend to protest attendees.
The Court of Appeal in Naser relied significantly on the suggestion in Commissioner of Police v Allen (1984) 14 A Crim R 244 (Allen) that protest organisers (who are the named defendants in the Supreme Court proceedings) may be acting in contempt of a prohibition order if they participate in the unauthorised protest (at 245). However, Hunt J in Allenconsidered it ‘fundamental’ that, without ‘specific statutory authority’, strangers to legal proceedings cannot be punished for disobeying orders made in those proceedings.
While the law of contempt can create liability for third parties in certain circumstances, such liability requires identifying how the third party’s conduct prejudices the administration of justice: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477.
So far, authorities have only identified such prejudice where the third party (1) aids or abets a breach of orders by a party to proceedings, or (2) frustrates the purpose of interlocutory orders (such as freezing orders and non-publication orders) and thereby destroys the subject matter of pending court proceedings: Attorney-General v Punch Ltd [2002] UKHL 50 at [3]-[4]. Each of the three cases on third party contempt cited by the Court of Appeal in Naser (at [11]) falls into either of these two categories.
Outside these two categories, it is not a contempt of court for a third party simply to do an act which a court order forbids someone else from doing, because the third party’s act causes no prejudice to the administration of justice: Attorney-General v Times Newspapers [1992] 1 AC 191 at 206.
A person who attends an unauthorised protest is extremely unlikely to fall into either of these two categories of third party contempt. First, a mere attendee can hardly be said to be aiding and abetting the holding of a protest by an organiser whom they have never met, and especially if that organiser no longer has any involvement in the protest. Secondly, a prohibition order under s 25 of the Summary Offences Act is final and not interlocutory. Once the s 25 order has been made against the original protest organisers, the purpose of the order is spent and there are no longer any pending proceedings to frustrate, thwart or subvert.
In Allen, Hunt J observed that the language of a ‘prohibiting’ order was ‘unfortunate because it clearly is likely to mislead the public (and perhaps also the litigants)’ into thinking the legislative scheme empowers the Court to ‘prevent members of the public exercising their precious democratic rights of freedom of speech, of peaceful assembly and of peaceful demonstration’. That language now appears also to have misled the Court of Appeal.
The unlawful assembly consequence
Section 545C(1) of the Crimes Act criminalises knowingly ‘join[ing]’ or ‘continu[ing] in’ an ‘unlawful assembly’. Section 545C(3) provides the only express definition of an unlawful assembly in the Crimes Act, stating that:
Any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do, shall be deemed to be an unlawful assembly (emphasis added).
In Naser, the Court of Appeal was led astray by the applicant’s textual argument that the word ‘deemed’ in subsection (3) indicates the definition in that subsection is non-exhaustive. Accepting that premise, the Court considered that a prohibition order under s 25 of the Summary Offences Act may cause a public assembly to meet the description of an ‘unlawful assembly’ in s 545C even if the circumstances in subsection (3) are not established.
That position is inconsistent with the observations of a majority of the Court of Appeal in State of New South Wales v Cullen [2024] NSWCA 310, a case which was not addressed by the Court in Naser. Gleeson and Kirk JJA rejected a ‘vague allusion’ by the State that participating in a prohibited assembly could constitute an offence of unlawful assembly and said (at [44]):
It is not the case that an assembly which is not an “authorised public assembly” under Pt 4 of the Summary Offences Act is, by that reason alone, an “unlawful assembly” for the purposes of s 545C.
In the same paragraph, Gleeson and Kirk JJA explained that ‘it has long been held that the term “unlawful assembly” is exclusively defined for the purposes of s 545C in subs (3) of that section’ (emphasis added), citing two prior unanimous decisions of the Court of Appeal in Ex parte Aubin; re Munday (1930) 30 SR (NSW) 169 (Aubin) and Corkery v Black [1989] NSWCA 49.
Section 545C was inserted into the Crimes Act in 1929 to ‘to deal with picketing and to amend the law relating to intimidation and molestation’, long before the Public Assemblies Act or the Summary Offences Act were contemplated by Parliament. In Aubin, Street CJ (Ferguson and James JJ agreeing) concluded that the intention of the legislature in enacting s 545C was to enable summary prosecution in the Local Court of only the assemblies described in s 545C(3). This was because, if s 545C had been intended to capture any broader concept of unlawful assembly (which has an established meaning at common law), the term ‘unlawful assembly’ in subsection (1) would have covered the field and Parliament could have omitted subsection (3) entirely.
Conclusion
Naser represents a significant departure from established understandings of pt 4 of the Summary Offences Act. In the absence of full argument on the issues of contempt and unlawful assembly, and where the Court of Appeal was required to decide the application in Naser with ‘the greatest expedition possible’ (s 27(1)), it was unwise for the Court to sow fear about criminal liability for attending a protest, and unfortunate that it chose to do so.
Addendum
This blog post was written prior to the commencement of the Terrorism and Other Legislation Amendment Act 2025(NSW), which was enacted in response to the Bondi attack. The Amendment Act empowers the Commissioner of Police to make a public assembly restriction declaration under the Terrorism (Police Powers) Act 2002 (NSW), during which public assemblies in a specified area cannot be authorised under ss 23 or 26 of the Summary Offences Act. These changes do not affect our analysis about the effect of a prohibition order by a court under s 25 of the Act.
Henry Chen is an associate to a Judge of the Federal Court of Australia. He holds a law degree from the University of New South Wales.
Cherry Tang is a casual academic and was previously an associate to a Judge of the New South Wales Court of Appeal. She holds law degrees from the University of New South Wales and Columbia Law School.
Suggested citation: Henry Chen and Cherry Tangi, ‘When is it illegal to attend a protest? Contempt of court and unlawful assembly following Commissioner of Police v Naser’ (25 February 2026) <https://www.auspublaw.org/blog/2026/2/when-is-it-illegal-to-attend-a-protest-contempt-of-court-and-unlawful-assembly-following-commissioner-of-police-v-naser>