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The Decent Protester: a Down Under Creation

The Decent Protester, appropriately capitalised and revered is, from the outset, one who does not protest. It is an important point: to protest in the visage of such a person is an urge best left to inner fantasy and feeling. You come late to the scene: the best work and revolt has been done; the people who made the change are either dead, in prison, or ostracised. Modest changes might be made to the legal system, if at all.

To actually protest, by which is meant screaming, hollering, and disrupting, with the occasional sign of public indignation, is something of a betrayal. A betrayal to your comfortable station; a betrayal to your happy state of affairs. Show disgust, but keep it regular, modest and contained. Add a dash of bitters that amount to hypocrisy.

This regularity is something that ensures the continuation of police states, apartheid regimes, and vicious rulers. It also perpetuates the status quo in liberal democracies. The cleverness of this is the idea of permissible revolt: As long as you operate within the acceptable boundaries of protest, your conscience is given its balm, and the regime can continue to hum to the tune of the tolerable. It is a principle that states of all political hues adopt, though the degree of that adoption is sometimes moderated by bills of rights and the like.

When Henry D. Thoreau was arrested and found himself spending a night in a Concord prison in 1846 for refusing to pay his poll tax, he was making a broader statement about breaking rules, albeit from a selfish perspective. His objects of disaffection were slavery and the Mexican War. To the individual exists a conscience that should not bow to majoritarian wishes. If there is a law “of such a nature that it requires you to be an agent of injustice to another,” he writes in Civil Disobedience, “then, I say, break the law.” In Walden (1854), he elaborated on the point, claiming that no citizen “for a moment, or in the least degree, resign his conscience to the legislation.”

This view has hardly gone unchallenged, suggesting that civil disobedience can be a slippery matter. Hannah Arendt cast more than a heavy stone at Thoreau in her own essay on the subject in The New Yorker in September 1970. Her proposal, instead, was the necessary need to institutionalise civil disobedience and render it a matter of recognised action, rather than individual abstention. Thoreau had, after all, suggested distance and the will of the individual, that it was “not a man’s duty, as a matter of course, to devote himself to the eradication of any, even to the most enormous wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it…”

To that end, Arendt felt that “it would be an event of great significance to find a constitutional niche for civil disobedience – of no less significance, perhaps, than the event of the founding of the constitutio liberatis, nearly two hundred years ago.” But she resists, curiously enough, the idea of legalising it, favouring a political approach akin to treating the protester as a registered lobbyist or special interest group. “These minorities of opinion would thus be able to establish themselves as a power that is not only ‘seen from afar’ during demonstrations and other dramatizations of their viewpoint, but is always present and to be reckoned with in the daily business of government.”

Few countries better exemplify this dilemma than Australia, a country that has no formal constitutional protection of the right to protest yet insists on a collaborative model between protestor and state (protest permits, for instance, take precedence over any organic right; cooperating with police is encouraged, as laws are to be abided by). In some ways, an argument might well be made that civil disobedience, in anaemic form, has been institutionalised down under.

The result from brought forth in this coagulation is simple if compromising: the Decent Protester. Such a person is one very much at odds with the barebones definition of civil disobedience advanced by Robin Celikates, who describes it as “intentionally unlawful protest action, which is based on principles and aims at changing (as in preventing or enforcing) certain laws or political steps.” In other words, there can be no Australian Rosa Parks.

Each state has its own guidelines for the decent protester, offering a helpful hand for those braving a march or organising a gathering. An information booklet covering the right to protest in the Australian Capital Territory has a range of “guidelines”. It speaks of “many public places” in Canberra, the national capital, “where people can exercise their right to communicate their opinions and ideas through peaceful protests and demonstrations.” The authors of the booklet make the claim that Australian “democracy recognises this right which is subject to the general law and must be balanced against the rights and interests of others and of the community as a whole.”

The Commonwealth Attorney-General’s office gives the false impression that Australia has a clear right to peaceful assembly for people to meet and “engage in peaceful protest.” A list of international human rights treaties are suggested as relevant, including the International Covenant on Civil and Political Rights (articles 21 and 22) and the International Covenant on Economic, Social and Cultural Rights (article 8(1)(a)). But being a party to a convention is not the same as incorporating it. Legislation needs to be passed and, for that reason, remains mediated through the organs of the state. The Fair Work Act 2009, for instance, protects freedom of association in the workplace but only in the context of being, or not being, members of industrial associations. Not exactly much to go on.

Other publications venture a much older right to protest, one that came to the Great Southern Land, paradoxically enough, with convict ships and manacles. “The origins of the common law right to assembly,” argues a briefing paper by Tom Gotsis for the NSW Parliamentary Research Service, “have been traced back 800 years to the signing of the Magna Carta.” This, in turn, finds modest recognition in state courts and the High Court of Australia, not least through the limited implied right of political communication. Ever eccentric in its conservatism, that right is not a private one to be exercised against the state, merely a control of hubristic parliaments who venture laws disproportionate to it. Not exactly a glorious, fit thing, is that implied right.

Such protest, measured, managed and tranquilised, makes the fundamental point that those who control the indignation control the argument. Much time has been spent in Australia embedding police within the protest structure, ensuring that order is maintained. Trains, buses and cars must still run on time. People need to get to work. Children need to be in school. The message is thereby defanged in the name of decency. It also means that genuine lawbreaking aimed at altering any policies will frowned upon as indecent. Good Australians would never do that.

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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