Council red tape is stymieing the right to protest, a report has said, after a regional New South Wales council told a protest organiser they needed a $20m public liability insurance policy to hold a rally in a park.
A report released on Wednesday, co-authored by Australian Democracy Network (ADN) and Deakin University’s Centre for Law as Protection, raised concerns about incidents in which councils have required protest organisers to obtain insurance when rallies are held on council land.
It also expressed concern about the power some regional and urban councils have to issue financial penalties if public gatherings are held without a council permit.
In July, Mariella Gussoni notified Bathurst Regional Council she was holding a protest in a local park against the culling of brumbies in Kosciuszko national park. In her email to the council, seen by Guardian Australia, she said the protest would be part of nationwide rallies on a set day in August. The protest would include speakers and music, and she wasn’t sure if five or 50 people would attend, she wrote.
The council responded by letter, seen by Guardian Australia, saying it would permit her to hold her planned protest on the condition she take out a $20m public liability insurance policy, noting the council would not be liable for any loss or injury.
Nervous about what that could mean, and how much it would cost, the 61-year-old decided to hold the protest, which was attended by an estimated 120 people in, next to the park. She notified police of her intention to hold the rally on the footpath – which is not council land – and said it went ahead without any issues.
“It scared me that I would be liable,” she said. “I had just let the council know as a courtesy.”
A spokesperson for Bathurst council said: “Council engaged with the event organisers at the time and won’t be providing any further comment on the matter.”
Report co-author and ADN protest rights campaigner, Anastasia Radievska, said council red tape such as insurance requirements could have a chilling effect on people speaking up about what’s happening in their local neighbourhoods.
“Often, community groups might spring up in relation to a specific local issue,” she said. “The more councils do this, the more other councils think that this is the way to interact with protest.”
The report said that across most Australian jurisdictions, “protest is unlawful or unprotected” without “permission from police, councils or place managers” and called on existing permit systems to be considered a process of notification rather than authorisation. It also recommended there be no insurance requirements.
NSW carries a $2,200 fine if a public gathering is held on council land without a permit, the report noted. This is a default requirement under the Local Government Act, but some councils have their own policies which deviate from the act. The city of Sydney has passed a number of motions affirming the right to protest on council land.
This requirement exists in addition to the police’s form 1 process, in which protesters can notify police of an intention to protest and gain immunity from being charged for offences such as obstructing a road in a designated area.
Tim Roberts, the president of the Council for Civil Liberties, said council demands for insurance or permits was “unhelpful” and a “reactionary approach”.
“It’s a blatant contravention of the right to protest,” Roberts said, referring to the implied right to freedom of political communication in the Australian constitution.
He agreed that protest organisers should only be required to give notice and not seek authorisation. He equated the council requiring insurance to calls for a user-pays system for the policing of protests.
Last week, a community group opposing a proposed $2.9 billion data centre on Sydney’s Cooks River was told by Bayside council it needed public liability insurance to hold a rally at Cahill Park in Wolli Creek.
The council also told the organisers it required an event application because their event included food, a film, and amplified sound. One of the organisers for Stop the Cooks River AI Project (SCRAP), Caitlin Boyce, said the council said it would need eight weeks to assess the application.
After receiving pro bono legal advice, the group decided to take their chances and go ahead with the protest without making an event application to the council. Boyce said she hasn’t heard from the council since going ahead with the rally.
A spokesperson for the Bayside council said it was not opposed to the public gathering, but the planned activities – which it said included a BBQ and smoking ceremony – “constitute an organised event and are subject to Council’s event approval requirements”.
Local Government NSW and the Office of Local Government were approached for comment.
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