“The one great principle of the English law is, to make business for itself.”
— Charles Dickens, Bleak House, Chapter 39.
The arcane mysteries of the Australian legal system
Justice for Palestine Magan-djin and the challenge to Queensland’s anti-protest laws
I would like to share a few thoughts about the arcane mysteries of the Australian legal system, particularly in relation to the challenge by Justice for Palestine Magan-djin (JFP) to the laws passed by the Queensland Government restricting political expression in support of Palestine. The New South Wales Government has now intervened in the High Court proceedings in support of the Queensland Government’s position.
First, I should explain that I have been involved in, or associated with, fivr High Court matters dating back to:
1. the street marches of the late 1970s (Too much order, too little law by Frank Brennan),
2. the SEQEB dispute of 1985 (Concerned Christians),
3. a matter arising from my employment (ATO v Dame Elizabeth Murdoch),
4. Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia
[1998] HCA 30 in which Julian Burnside appeared for the MUA (here to stay) in proceedings before Justice Tony North of the Federal Court, who granted an injunction on 8 April 1998 against the wholesale sacking of its members and the government’s conspiracy with their employer, Corrigan.
The matter was resolved in the wharfies favour in the High Court on May Day 1998. Nonetheless the moa still lost the industrial struggle their membership was halved their wages and conditions were reduced and the union fell into the doldrums from which it has not recovered.
5. and now, the Justice for Palestine Magan-djin challenge against the Fighting Antisemitism and Keeping Guns Out of the Hands of Terrorists and Criminals Amendment Act 2026 (Qld).
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The challenge specifically concerns provisions criminalising certain political expressions, including “From the river to the sea” and “Globalise the intifada”.
The plantiffs argue that these provisions infringe the implied freedom of political communication under the Australian Constitution.
I am not a lawyer, but neither am I a newcomer to these kinds of political cases. But be mindful that there are probably only about 25 lawyers in the country who are well enough versed in argument and procedure to take a matter to the High Court. It is a very specialised area of practice of law.
In a broad sense, all High Court cases are political. However, the cases I am discussing have particularly affected political movements and their ability to organise, demonstrate and challenge government power.
I want to examine the present situation from three perspectives.
1. What happens to people who have already been arrested, or who may be arrested in the near future, under the Queensland laws?
2. What are the vagaries and uncertainties of challenging legislation in the High Court?
3. What effect might this challenge have on the broader political struggle for Palestine and democratic rights?
4. The Peaceful Assembly Act and the Fighting Antisemitism Act — two different laws.
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What happens to people arrested under the Queensland laws?
The first thing to understand is that people arrested under these laws face a long and potentially exhausting legal process, regardless of whether the High Court ultimately finds the legislation constitutionally invalid.
The two principal episodes of organised civil disobedience by Justice for Palestine occurred on 18 April and 14 June 2026.
There have been other arrests, but these were the two major occasions on which people deliberately challenged the laws through collective political action.
The legislation has been used against people displaying or chanting expressions such as “From the river to the sea” and “Globalise the intifada”.
Queensland Police have exercised their powers selectively. They do not arrest everyone who uses these expressions. Sometimes they intervene, sometimes they do not. This gives police considerable discretion over who is arrested and who is left alone. Their aim is to take out the organisers and their capacity to organize.
That is a troubling aspect of the legislation.
Once arrested, a person enters the Magistrates Court system.
Those arrested in April 2026 have already begun that process. There will be mentions, adjournments, discussions between lawyers and prosecutors, and eventually, unless the charges are withdrawn or otherwise resolved, a contested hearing.
Such proceedings can take many months, sometimes a year or more.
The magistrate will generally be concerned with the evidence, the precise offence charged, and whether the prosecution has proved the elements of that offence.
The constitutional question is another matter. Although lower courts can consider constitutional arguments in appropriate circumstances, the High Court challenge may become a reason for seeking adjournments.
If the High Court grants special leave and proceeds to consider the validity of the Queensland legislation, defence lawyers may seek to have the Magistrates Court matters deferred until the constitutional question is resolved.
But that is not automatic. Each court must decide how to manage the proceedings before it.
If special leave is refused, the prosecutions may continue, with whatever defences and appeal rights remain available.
The important point is that the people arrested and their pro bono lawyers are being required to spend considerable time, energy and resources defending themselves against charges arising from political expression.
Even an eventual victory in the High Court would not necessarily undo the personal consequences of having been arrested and prosecuted.
The vagaries of High Court challenges
The Justice for Palestine case has not yet received special leave to proceed.
I expect that special leave may be granted, possibly in December 2026, but that is by no means certain. I say this because of the High Court’s current interest in questions concerning freedom of political expression, as demonstrated by its decision to grant Pauline Hanson special leave to appeal the Federal Court’s findings in the racial vilification case brought against her by Senator Mehreen Faruqi.
There is another important case concerning political expression before the
Pauline Hanson has been granted special leave to appeal in the proceedings broug
Hanson was found by the Federal Court to have engaged in unlawful racial vilification when she told Faruqi to return to Pakistan. Her appeal concerns the application of federal racial discrimination law and its relationship with political communication.
In the Remah Naji case, sponsored by Justice for Palestine Magan-djin, the High Court has asked the Attorneys-General of Queensland and New South Wales to provide technical legal reasons why special leave should not be granted for the challenge to proceed.
It would be ironic in the extreme if Pauline Hanson’s appeal were granted special leave while the Justice for Palestine Magan-djin challenge was refused.
On the question of costs in the Hanson appeal against Senator Mehreen Faruqi, I would put a ballpark figure of $200,000 on Hanson’s legal representation in the High Court alone, with another $200,000 for the opposing legal team and associated court costs.
Allowing for additional expenses, that could bring the total cost of the High Court proceedings close to half a million dollars.
This is a bush lawyer’s estimate, not a figure drawn from the parties’ actual legal bills, but it is informed by the substantial costs involved in High Court litigation.
It would be ironic in the extreme if Pauline Hanson succeeded in overturning findings against her while Justice for Palestine was denied the opportunity to challenge laws restricting political expression in support of Palestine.
These are different cases involving different legislation and legal questions, but the contrast is politically striking.
How long does a High Court challenge take?
One of the realities of High Court litigation is the extraordinary amount of time involved.
Even if special leave is granted in December, it may be many months before the substantive case is heard and a written judgment delivered.
The legal profession and courts operate on a reduced schedule during January, and the preparation of a constitutional case involves substantial work.
There are affidavits to prepare, evidence to assemble, legal submissions to draft and questions from lawyers requiring further information.
Sometimes the process takes considerably longer than expected.
I remember this from the street march cases and the SEQEB dispute.
The political struggle often moves much faster than the legal proceedings.
By the time the High Court delivers its judgment, the political circumstances may have changed dramatically.
The Peaceful Assembly Act and the police correspondence.
Recently, lawyers involved in the Justice for Palestine challenge have requested copies of notices of intention lodged under Queensland’s Peaceful Assembly Act 1992, together with correspondence between JFP and Queensland Police.
This is a reasonable request.
The lawyers will want to establish what notices were provided, what the police knew, how the assemblies were organised, and what communications occurred before the arrests.
It is possible that the legal team will also seek disclosure of relevant police correspondence and records. Whether that involves subpoenas or other legal procedures remains to be seen.
However, I do not think people should become unduly anxious about this aspect of the case.
The Peaceful Assembly Act is relevant to the circumstances in which the protests took place, but it is not itself the source of the constitutional implied freedom of political communication.
That distinction is important.
The Act provides a statutory framework for peaceful public assemblies in Queensland. The constitutional challenge raises the separate question of whether Parliament has exceeded the limits imposed upon its legislative power by the Australian Constitution.
The notices and correspondence may be useful evidence, but they are not necessarily the central constitutional issue.
What is the implied freedom of political communication?
The Australian Constitution does not contain an express general right to freedom of speech comparable to the First Amendment of the United States Constitution.
The implied freedom of political communication has instead been developed through decisions of the High Court.
It arises from the system of representative government established by the Constitution that many rightfully claim is now defunct given that the genocide has occurred. One retired barrister pointed out to me that he knew nothing of the police violence and government intervention during the Herzog visit.
In other words, the Constitution requires a functioning system of political representation, and that system depends upon the ability of people to communicate about political and governmental matters.
The High Court has therefore recognised limits on the power of governments to restrict political communication.
This is not an unrestricted personal right to say anything. It is a constitutional limitation on legislative and executive power.
The distinction matters because governments can impose some restrictions on political communication, but those restrictions must satisfy constitutional requirements.
The High Court has developed a substantial body of case law dealing with these questions.
Among the important decisions are Lange v Australian Broadcasting Corporation (1997), Coleman v Power (2004), McCloy v New South Wales (2015), and Brown v Tasmania (2017).
The last of these is particularly interesting.
Bob Brown and other protesters challenged Tasmanian legislation restricting protests, particularly those associated with environmental campaigns.
The High Court held that important provisions of that legislation impermissibly burdened the implied freedom of political communication.
The Franklin Dam case of 1983 was different. That case concerned the Commonwealth’s constitutional powers, including its external affairs power, rather than establishing the implied freedom of political communication.
Nevertheless, both cases demonstrate the relationship between political campaigns, parliamentary legislation and constitutional litigation.
Can Justice for Palestine Magan-djin win?
There is no certainty that Justice for Palestine will succeed.
The High Court will examine the legislation, its purpose, its practical operation and the extent to which it burdens political communication.
One of the central political objections to the Queensland legislation is that it targets expressions closely associated with one side of a major international political genocidal project, an erasure of the Palestinian people.
Expressions such as “From the river to the sea” and “Globalise the intifada” have become central to the controversy.
The legislation places considerable power in the hands of police officers to decide when and against whom it will be enforced.
People can be arrested in the street and then required to contest the allegations in the lower courts.
Even if they are eventually acquitted, the process itself imposes a substantial burden.
The constitutional question is whether that burden is justified under the principles established by the High Court.
It is certainly not a lay-down misère for either side.
The political significance of the High Court challenge
Is it necessary to take this action?
On balance, I think it is.
But I say that with a warning based on my own experience.
I have never regarded High Court litigation as the defining moment in a political campaign.
Governments do not necessarily respond to court judgments in the way political activists might hope. They may amend legislation, adopt different measures, or continue pursuing the same political objectives by other means.
More importantly, the judgments often arrive long after the political struggle has been won or lost.
Consider the street march struggles of the late 1970s.
The struggle for the right to march in Queensland was not won through litigation although we did tie up the courts making it difficult and costly for them to function.
That struggle was fought through repeated demonstrations, arrests, prosecutions, public meetings and the development of a broad democratic rights movement.
That movement involved campaigns for women’s rights, black land rights, gay rights, education, environmental protection, opposition to uranium mining and export, and resistance to the authoritarian policies of the Bjelke-Petersen Government.
The High Court did not create that movement, nor did it determine its political outcome.
The same can be said of the SEQEB dispute in 1985.
A group of concerned Christians challenged their arrests through the courts.
Their intervention provided a challenge to police arrest of unionists under the Electrity Continuity of Supply Act
But it did not restore the jobs of 1,002 electricity workers sacked by the Queensland Government.
The political defeat of those workers was not reversed by constitutional litigation.
The Franklin Dam campaign offers another example.
The High Court’s decision was legally decisive in upholding the Commonwealth legislation protecting the river. But the political victory depended upon years of campaigning by environmentalists, the mobilisation of public opinion, and the Hawke Government’s decision to use Commonwealth powers to stop the dam.
The courts were part of the struggle, not a substitute for it.
The importance of the Peaceful Assembly Act
There is another important lesson from Queensland’s history.
The Peaceful Assembly Act 1992 emerged in the aftermath of the democratic rights struggles against the Bjelke-Petersen Government.
It provides protections for peaceful assemblies, including protection against the ordinary application of certain obstruction and move-on powers where an assembly is authorised and remains within the statutory framework.
These protections are not absolute, but they have been important.
For three years, Justice for Palestine Magan-djin has organised demonstrations in Brisbane, often using notices of intention under the Act.
This has provided a degree of protection against arbitrary police interference.
There have been arrests, and there have been instances of police violence and intimidation.
But the scale of police violence has not generally approached what was witnessed in New South Wales during protests surrounding the visit of Israeli President Isaac Herzog.
That difference is worth examining.
The Queensland legislation governing peaceful assemblies has provided protesters with protections that are not always available, or not always respected, elsewhere.
It is one of the gains of the earlier democratic rights movement.
And it is worth defending.
What does this mean for the Palestine movement?
The struggle against the Queensland laws is not simply a legal dispute about two political slogans.
It concerns the ability of people to organise collectively, to express solidarity with Palestine, and to challenge the policies of governments.
The Queensland Government has attempted to restrict expressions associated with the Palestinian solidarity movement.
The New South Wales Government has intervened in support of Queensland government’s position in the High Court proceedings.
Meanwhile, people continue to be arrested and prosecuted.
A successful constitutional challenge could establish an important precedent restricting the ability of governments to suppress political communication.
An unsuccessful challenge could leave governments with greater confidence to impose similar restrictions Australia wide. Queensland is, once again, the front line.
But neither outcome will determine the future of the Palestine solidarity movement.
That will depend upon the movement itself.
The campaigns against the Vietnam War, apartheid, uranium mining, the destruction of the Franklin River and the sacking of the SEQEB workers were not fundamentally courtroom struggles.
They were political struggles involving collective organisation, solidarity, public mobilisation and, at times, civil disobedience.
The struggle for Palestine is no different.
Conclusions
The High Court challenge by Justice for Palestine Magan-djin is necessary and deserves support.
Those arrested under the Queensland laws also deserve continuing practical and political support as they navigate the lengthy proceedings in the Magistrates Courts.
But we should not entertain illusions about the speed of the Australian legal system or the capacity of the High Court to resolve political struggles.
The implied freedom of political communication is important. It establishes constitutional limits upon the power of governments to restrict political debate.
The Peaceful Assembly Act and the Fighting Antisemitism Act — two different laws
I would like to make a couple of points about the relationship between the Peaceful Assembly Act 1992 and the Fighting Antisemitism and Keeping Guns out of the Hands of Terrorists and Criminals Amendment Act 2026, passed by the Queensland Government.
These are two quite separate pieces of legislation, and their direct interplay is relatively limited, even though both have important implications for the organisation of political assemblies and the exercise of political expression.
The Peaceful Assembly Act 1992 provides a very important statutory protection for people participating in authorised public assemblies. Under the Police Powers and Responsibilities Act 2000, police ordinarily have powers to direct people to move on from public places. However, section 45 of that Act expressly excludes authorised public assemblies from the operation of the ordinary move-on provisions.
This is not a minor protection. It means that where Justice for Palestine Magan-djin has submitted a valid notice of intention to hold a public assembly, and that assembly has become authorised under the legislation, police cannot simply invoke their ordinary move-on powers to disperse the demonstration.
Section 6 of the Peaceful Assembly Act goes further. It provides immunity from civil or criminal liability arising merely from participation in an authorised, peaceful assembly that obstructs a public place, provided the assembly is conducted substantially in accordance with its notified particulars and any applicable conditions.
These protections have been important to Justice for Palestine Magan-djin in organising demonstrations against the genocide in Gaza and the ethnic cleansing of Palestinians in the West Bank. They provide a legal basis for people to assemble, march and occupy public places without being subjected to ordinary police move-on directions simply because they are participating in an authorised demonstration.
However, this immunity has its limits. It does not provide blanket protection against prosecution for alleged offences committed during an assembly. Nor does it prevent police from exercising other lawful powers in appropriate circumstances.
This is where the new legislation becomes significant.
The Fighting Antisemitism and Keeping Guns out of the Hands of Terrorists and Criminals Amendment Act 2026 introduced a new offence into the Queensland Criminal Code concerning the public use of the expressions “From the river to the sea” and “Globalise the intifada”. The offence applies where the statutory requirements concerning menace, harassment or offence are satisfied, and the legislation also provides for a reasonable-excuse defence.
Consequently, a demonstration may be entirely lawful and authorised under the Peaceful Assembly Act, yet participants may still be arrested and prosecuted for using particular political expressions under the newer legislation.
In other words, the police may have lost their ordinary power to move protesters on, but they have acquired a separate statutory basis for arresting and prosecuting people over particular forms of political expression.
This distinction is fundamental.
In my view, the new legislation puts a substantial dent in the ability of Justice for Palestine Magan-djin to organise opposition to government complicity in Israel’s genocide in Gaza and the West Bank. It creates the possibility that people participating in an otherwise lawful and authorised political assembly may nevertheless face criminal charges for expressing political views through slogans that have become associated with the Palestinian struggle.
The Queensland Government presents these restrictions as measures to combat antisemitism and protect members of the public from menace, harassment and offence. However, the legislation also raises a serious question about the extent to which a government can criminalise particular political expressions without impermissibly burdening the implied freedom of political communication under the Australian Constitution.
That is one of the central constitutional questions raised by the Justice for Palestine Magan-djin challenge before the High Court.
The Peaceful Assembly Act protects the right to assemble and provides important statutory immunities. The newer legislation restricts certain forms of expression that may occur within those assemblies.
The fundamental issue is whether the state can permit a political demonstration to take place while criminalising particular political expressions used by those participating in it.
Both provide legal ground upon which movements can stand.
But neither is a substitute for political organisation.
The real significance of a High Court judgment is that it can establish a yardstick against which future government actions can be measured.
The struggle itself takes place elsewhere: in the streets, in workplaces, in communities and through the collective action of people determined to defend their democratic rights.
That has been my experience over nearly fifty years of involvement in these matters.
And I see no reason to think that the present struggle will be any different.
Ian Curr
12 November 2026
Reference
Article by Shane Dowling, published on 8 November 2026 in Kangaroo Court of Australia.
Pauline Hanson wins High Court hearing on Faruqi tweet — but the ‘free speech’ fight could backfire